What was Tenancy Tribunal case 4758842 about?

The tribunal order states: The anti-social behaviour notice served on the tenant is declared to be invalid

How much money was awarded in case 4758842?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4758842?

The primary dispute was Leaks. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4758842?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9893655-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4758842 about?

The tribunal order states: The anti-social behaviour notice served on the tenant is declared to be invalid

How much money was awarded in case 4758842?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4758842?

The primary dispute was Leaks. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4758842?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9893655-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4758842 — Leaks

Order

The anti-social behaviour notice served on the tenant is declared to be invalid and is withdrawn.
All other applications are dismissed.

Reasons

Both parties attended this video hearing on 26 January 2024.
The tenanted premises are at [Tenancy address suppressed] (“the premises”).
The tenancy started on 23 September 2020 and is current as of the date of this hearing. This is a periodic tenancy.
The tenant has filed three claims with the Tribunal. They are; • The tenant wishes to challenge an anti-social behaviour notice (see s.55A Residential Tenancies Act 1986) served by the landlord on the tenant. • The tenant claims that the landlord has breached their right to the quiet enjoyment of the premises ( see s.38 RTA). • The tenants seek an order that the landlord has a different staff member carry out future property inspections. Anti-Social behaviour notice-law
Where a tenant challenges an anti-social behaviour notice, it is for the landlord to prove two things to the usual civil standard.(see s.55A (6) RTA). That means that it is for the landlord to establish the requirements “on the balance of probabilities” or that what they are claiming is more likely than not.
Firstly, the landlord must prove that the tenant engaged in anti-social behaviour and secondly, that the notice met the requirements of s.55A(2)(b) RTA.
Section 55A RTA provides that the Tribunal may terminate a tenancy if: “on three separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission ( other than the landlord or a person acting on the landlord’s behalf or with the landlord’s authority) engaged in anti-social behaviour in connection with the tenancy.”
The RTA defines what is anti-social behaviour and provides for strict processes that should be followed by the landlord when giving notices for anti-social behaviour that may lead to termination of the tenancy.
In s.55A (7) RTA anti- social be haviour is defined as being; (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.”
On each occasion the landlord must give written notice to the tenant of the alleged anti-social behaviour, that notice must include ( see s.55A(2)(b) RTA); • A clear description of the specific behaviour which is considered to be anti- social. • Who engaged in the anti-social be haviour ( if this is known to the landlord). • The date, approximate time and location of the behaviour. • Stating how many notices ( if any) the landlord has given the tenant under this paragraph with the same tenancy within the same 90 day period. • Advising the tenant of the right to challenge the notice. Anti-social behaviour evidence Tenant Evidence
The landlord carried out an inspection of the premises on 31 October 2023. The inspection was carried out by [The property manager/s], a staff member of the property management company. The appropriate notice of the landlord’s intention to conduct an inspection had been given.
[The property manager/s] knocked at the door. [The tenant's mother] answered the door. [The tenant's mother] resides at the premises. At the time of the commencement of the inspection, [The tenant/s] was not home.
[The property manager/s] was invited in.
[The tenant's mother]’s evidence was that she had previously had poor experiences with other property managers and wished to make sure that [The property manager/s] was aware of her concerns, in particular, about the taking of photos of personal belongings during the inspection.
[The property manager/s] said that the landlord had given two weeks’ notice of the proposed inspection and that the tenant had therefore had sufficient time to cover any items that they did not want shown in any photos.
[The tenant's mother] responded by saying that was rude.
[The tenant's mother] said that [The property manager/s] walked into the kitchen and started to take a wide angle photo showing the whole kitchen This concerned her as she considered that the photos should only be of any areas of concern and should be more of a “close up” photo. She told [The property manager/s] that he should be taking detailed photos and not wide angle photos of a whole room. .
[The property manager/s] moved to the bathroom to inspect it and take more photos. [The tenant's mother] followed him and suggested in a sarcastic manner that he “should take photos of the toilet rolls.”
[The property manager/s] told her not to tell him how to do his job.
[The tenant's mother] accepts that at this point she took a photo of [The property manager/s]. [The property manager/s] noticed this and asked her to delete the photo.
[The tenant's mother] said that during this interaction [The property manager/s] raised his voice and looked at her in a manner which she found intimidating.
At this point, [The tenant/s] arrived home. [The tenant/s] said that when she entered the house, she saw [The tenant's mother] and [The property manager/s]. She said that [The property manager/s] was yelling at [The tenant's mother].
[The property manager/s] explained that he was simply trying to do his job by carrying out the inspection.
[The property manager/s] then went to [The tenant/s] bedroom and carried on the inspection. He pointed the camera towards the whole room and took photos of the whole room and then individual photos of different areas of the room. [The tenant/s] asked him to be respectful.
[The tenant/s] said that she had received a notice from the landlord alerting her to the inspection, but that the notice did not include any request to cover or remove personal items.
The tenant said that she wished to see the photos. She had her mobile phone in her hand and referred [The property manager/s] to the Tenancy Services website which she said indicated that she could see the photos. She says at this point [The property manager/s] snatched her phone out of her hand and said, “I can read.”
[The tenant/s] again asked to see the photos and she says that [The property manager/s] said that he would show her at the end of the inspection.
At the end of the inspection, the photos were viewed. [The tenant/s] said that one of the photos showed her whole bedroom including her bed.
[The tenant/s] said that she felt uncomfortable during the inspection and in particular said that [The property manager/s] suggested she move out if she was unhappy with the inspection process.
[The tenant/s] agreed that her mother had taken a photo of [The property manager/s], but had deleted it and apologised. Landlord Evidence
[The property manager/s] said that he had six property inspections to carry out on 31 October 2023.
He knocked on the door, which was answered by [The tenant's mother]. She said that she did not want him taking photos of the tenant belongings. She proceeded to demonstrate how close up photos should be taken. [The property manager/s] said that close up photos alone did not provide “context” and that his usual practice was to take an overall photo of a room and then more specific photos of any area of concern (stains, leaks, damage and the like).
Notice had been given of the inspection, so that tenants had two weeks to cover any items.
[The property manager/s] said that [The tenant's mother] followed him during the inspection and that she stood very close to him, which caused him to feel uncomfortable. [The tenant's mother] kept interrupting him and asked him not to take photos of particular items.
[The property manager/s] said that the comment made by [The tenant's mother] about taking photos of the toilet paper was mocking and degrading. He felt that [The tenant's mother] was trying to tell him how to do his job.
[The tenant/s] arrived home and [The property manager/s] asked her to have [The tenant's mother] delete photos taken of him. He felt disrespected and that [The tenant's mother]’s actions were inappropriate.
[The property manager/s] denied yelling at the tenants during the inspection.
[The property manager/s] explained that all photos taken are audited by his manager and copies are provided to the tenant in the inspection report.
The anti-social behaviour notice noted that the tenant had been “intimidating.” I asked [The property manager/s] to explain which specific tenant action had intimidated him. He said that [The tenant/s] had accepted that [The tenant's mother]’s behaviour was “poor.” He said that the tenants had tried to tell him how to do his job and that they had been condescending towards him. The tenants had followed him closely during the inspection and kept interrupting him while he was trying to do his job.
The anti-social behaviour notice noted that the tenants had made “aggressive comments.” I asked [The property manager/s] to say what specifically the tenants had said that was aggressive. He said that the tenants said not to take photos of their personal belongings and that they would call tenancy services. Analysis Does the notice comply with s.55A(2)(b)?
The notice does comply with subsections (ii) to (iv) of s.55A(2)(B) RTA.
Subsection (i) requires the landlord to “describe clearly which specific behaviour was considered anti-social”( the emphasis is mine).
The notice says that; • [The tenant's mother] intimidated the property manager by interrupting the work flow. • Made condescending comments. • Took photos of the property manager. In my view, that is sufficiently specific to give the tenant notice of the behaviour complained of and the notice as it relates to that compliant does comply with the notice provisions of the RTA.
The notice further says that the tenant made “aggressive comments.” I do not consider that this statement, by itself, describes clearly the specific behaviour complained of and accordingly I do not accept that the notice, as it applies to that complaint, complies with the notice provisions of the RTA.

Section 55A (7) RTA defines anti- social be haviour as being; (c) Harassment; or (d) 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.”
“Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation.” Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: “Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.”
From these definitions, it appears that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder Palmerston North TT 12/87, 16 March 1987 the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
Does the landlord evidence disclose any ongoing or single act of intentional behaviour by the tenant designed to cause distress to the property manager ? The remaining claim relates to allegations that the tenant intimidated the property manager by interrupting the work flow, making condescending comments and taking photos of the property manager.
Remembering that the onus of proving that there was anti-social behaviour remains with the landlord, I find that even on the evidence of the landlord alone, I do not see sufficient evidence of actions or words designed by the tenant to cause distress to the landlord. I find that there has not been any harassment by the tenant. Has there been any other act or omission by the tenant, whether intentional or not, which reasonably causes alarm, distress or nuisance that is more than minor ?
Can interrupting the landlord’s work flow, making condescending comments or taking photos of the landlord be an act by the tenant, whether intentional or not which reasonably causes alarm, distress or nuisance that is more than minor?
Considering each claim separately, whilst interrupting the landlord‘s work flow may be a nuisance, it cannot be said to reasonably cause nuisance that is more than minor.
Can making condescending comments reasonably cause alarm, distress or nuisance that is more than minor. Whilst the landlord may have found the comments to be unpleasant, I cannot say that they were likely to cause nuisance that is more than minor.
Can taking a photo of the landlord, be an act by the tenant, whether intentional or not, which causes alarm, distress or nuisance that is more than minor?
In the circumstances of this case, I accept that the taking of the photo may have caused the landlord distress or nuisance. I must also take into consideration that the photo was deleted when the landlord expressed his concern. For that reason alone, I consider the distress or nuisance to the landlord to be minor.
For all of the reasons above the application by the tenant challenging the anti- social notice is successful. The anti-social behaviour notice is declared to be invalid and must be removed by the landlord.
The relationship between the landlord and tenant parties in this matter is strained. However, I consider that the purpose of s.55A RTA is to capture and deter more serious behaviour than has occurred in this matter. The notice provisions should not be used to address minor matters of poor inter-personal relationships between the parties. Breach of quiet enjoyment
The tenant claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s.38(2) RTA). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (see s 38(3) and Schedule 1A RTA).
The tenant’s right to quiet enjoyment is subject to the landlord’s rights and obligations, which if exercised reasonably and lawfully will not unduly impair the tenants use of the premises. For example, a landlord is entitled to inspect the premises. An inspection will not normally breach the tenant’s right to quiet enjoyment, but the taking of excessive photographs during an inspection or the taking of photographs of the tenant’s personal effects, without the tenants permission may be a breach of the tenant’s right (see Trevor Hurley Real Estate Ltd v Campen 2014 NZTT Timaru 204).
Section 22 of the Privacy Act 2020 contains 13 Information Privacy Principles(IPP) that are the core of the Privacy Act. The IPP sets out how agencies such as property managers should collect, use, disclose, store, keep accurate, and retain personal information such as photographs taken during property inspections. The IPP also sets out that people such as tenants can ask to see their personal information and ask for correction if the information is wrong.
To paraphrase the application of some of the relevant principles, landlords should in respect to routine inspection photographs; ( see Katrine Evans Focusing on Solutions: working with the Office of the Privacy Commissioner NZLSCLE Seminar(2011) ). a. Only take photographs they really need. b. Tell the tenants that they will take photographs and why. c. Be fair and reasonably in how the photographs are taken. d. Store the photographs securely and protect them against misuse. e. Give tenants access to their photographs when they ask. f. Only keep the photographs for as long as the landlord needs them.
Given that the Privacy Act principles will inform the Tribunal’s task of deciding personal information issues under s 38 RTA, it is useful to consider the Privacy Commissioner’s guidance on the issue. His Office’s advice is that landlords may take photographs during inspections.
The Privacy Commissioner is the expert on the topic of personal information. The Privacy Commissioner’s findings and pronouncements are not binding on the Tribunal, but they are highly persuasive given his specialist knowledge and status within the New Zealand legal framework.
The Office of the Privacy Commissioner’s advice for landlords and tenants about this issue from the Office’s website, includes; “When carrying out a flat inspection, you should collect no more information about the tenants than is necessary to assess how well they are caring for the property. When taking photos, you shouldn’t include people in the shots or focus on the occupants personal items unless those items contravene the tenancy agreement.”

Can a landlord or property manager take photos during inspection?

Yes, they can. Landlords and property managers have a lawful purpose to collect information about a rental property when they carry out a property inspection. The Privacy Act says an agency should only collect information for a lawful purpose and the collection of that information has to be necessary for that purpose. Taking photos is a useful way of documenting the state of a property in case a matter is disputed at a later date and it is common for photos to be used as part of the inspection report. Where the property or the tenant is identifiable from the photos, landlords should be clear with the tenant about when the information can be collected and why (information privacy principle three). They should include this in the tenancy agreement and communicate this to the tenant right from the beginning. They also need to take care to store the images securely and only share the images for a purpose connected to the property inspection.”

In this case, the landlord explained that he would initially take a wide angle photo of a room to “provide context” and then close ups of any areas of concern. The wide angle photos will inevitably contain items of tenant personal belongings. The landlord says that the tenants were given notice of the proposed inspection and that the notice included a suggestion that tenants’ cover any personal belongings. The tenant said that notice of the inspection was received, but that it did not contain the suggestion of covering personal belongings. The tenancy agreement contains the following; “17 Inspections and photographs-The Tenant acknowledges that photographs or videos will be taken to record the condition of the Property. The tenant agrees to move or cover any personal effects that might be photographed. If the Tenant fails to move or cover any item, then the Tenant agrees to those items being included in any photographic record.”
That clause is an agreement or arrangement which modifies the provisions of the RTA, as the RTA contains no such provision or requirement. Section 11 RTA provides that such a provision will be of no effect unless: “(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.”
In my view, the inclusion of clause 17 in the Tenancy Agreement is included for the protection of the tenant and accordingly should be a permitted modification. Having reached that conclusion, I find that the right to take photographs in this case was an exercise of the landlord’s rights and obligations. If the tenant was sufficiently concerned about the taking of photographs of their personal possessions, they should have covered the personal items causing them concern. The tenant application is dismissed.
The tenant further asks that the Tribunal order the landlord to arrange for a different property manager to attend to future inspections. Whilst there may be some practical sense in that proposal, the Tribunal has no jurisdiction to order that and the application is dismissed.
Both parties have applied for name suppression. Each party has enjoyed a substantial degree of success in this matter and name suppression is ordered for both parties.

Tenancy Tribunal case 4758842 — Leaks

At a glance

Tenancy Tribunal case 4758842 — Leaks

At a glance

Claims & awards

Order

Reasons

Can a landlord or property manager take photos during inspection?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Can a landlord or property manager take photos during inspection?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

At a glance

Claims & awards

Order

Reasons

Has the landlord proven that the behaviour was anti-social?

Can a landlord or property manager take photos during inspection?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has the landlord proven that the behaviour was anti-social?

Can a landlord or property manager take photos during inspection?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions