What was the outcome of Tenancy Tribunal case 4852083?

The tribunal order states: The tenancy of Sharon Irwin at 60 Hitchcock Crescent, Paremoremo, Auckland

How much money was awarded in case 4852083?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4852083?

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

Where can I read the official tribunal order for case 4852083?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10736316-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4852083?

The tribunal order states: The tenancy of Sharon Irwin at 60 Hitchcock Crescent, Paremoremo, Auckland

How much money was awarded in case 4852083?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4852083?

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

Where can I read the official tribunal order for case 4852083?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10736316-Tenancy_Tribunal_Order.pdf.

60 Hitchcock Crescent, Paremoremo, Auckland 0632 Tenancy Tribunal Case 4852083 — 14-day notice

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60 Hitchcock Crescent, Paremoremo, Auckland 0632 Tenancy Tribunal Case 4852083 — 14-day notice | TenantCheck

Order

The tenancy of Sharon Irwin at 60 Hitchcock Crescent, Paremoremo, Auckland 0632 is terminated, and possession is granted to the New Zealand Department of Corrections at 11:59pm on 23 September 2024.

Reasons

The Tribunal must consider an application filed by the landlord against the tenant, being an application for termination of the tenancy on the grounds of the state of the premises.

BACKGROUND

The background in this case is not in dispute, and can be summarised fairly succinctly as follows.
Ms Irwin is an employee of the Department of Corrections. As part of her employment, she rents a house located on Corrections property, in this case, Auckland Prison, which is known as the ‘Auckland Housing Village’. I understand that Ms Irwin has lived there for some 20 years.
For practical purposes, the tenancy is managed by an independent contractor, Colliers as the property manager.
In August 2023 Colliers undertook an inspection of the premises. The Tribunal has been provided with photographs from that inspection. The inspection report describes the findings as follows: a. The floor was covered with debris and cat faeces. b. Piles of belongings and rubbish throughout the premises. c. The premises being in a “very unhygienic state”, with benchtops being inaccessible. d. Heavily oxidised electrical fittings, with mould and moisture evident because doors could not be closed given the content of the dwelling. e. Some rooms being inaccessible due to rubbish and cat faeces present. f. Large numbers of flies present.
The Property Manager summarised the situation as follows: As noted, the tenant has between 20 and 30 cats in the property. Some are in cages and some are noted to have suffered a parasitic infection which has caused masses of faeces to accumulate in the property. There are multiple items of the tenants throughout the property and bags of rubbish also. The overall condition would be regarded as unsanitary and a risk to the health of the occupant, their pets and any visitors to the property. Estimate there’s approximately 10 skip loads of items would be present at the property and would require disposal. Remediation of the property would require forensic cleaning, in addition to the replacement of all wall linings, ceilings, curtains, bathroom [fittings and fixtures], kitchen [fittings and fixtures].
Having considered the photographs for myself, I consider that the description provided by the property manager was fair and accurate.
The property manager then engaged with Ms Irwin and raised with her that she had breached her tenancy obligations. Ms Irwin requested at least six months in order to clean her house, as she had physical constraints and only four days off each fortnight.
On 20 October 2023, the landlord issued a breach notice, giving the tenant four months in order to remove all rubbish from the property, undertake cleaning, and return the property to a reasonable standard. The landlord warned the tenant that if the premises were not remediated by 20 February 2024, the landlord may apply to the Tribunal for a termination of the tenancy.
In early 2024, the landlord advised following further assessments that there had been a little improvement, and the notice period for the work to be completed was extended to 5 March 2024.
It is also evident that the landlord heavily engaged with the tenant, in providing support and assistance to have the premises cleaned. I note for example an invoice from Spotless from 30 April 2024 Recording 132 hours of assistance with commercial cleaning, and also an invoice for the skip bins.
Some reduction in items in the tenancy occurred, but there is an indication that when some rooms were cleaned and emptied, the tenant would then move other belongings into that tidied room. The most recent comprehensive photographs available are from March 2024. Those show shoe some areas being uncluttered, but still unclean, and some very cluttered and unhygienic areas.
The landlord appointed Downer to undertake the cleaning and decluttering work in concert with the tenant. However, emails from early and March 2024, indicate that things did not go well, and in effect, the tenant has declined consent for Downer to continue their work, and my impression is that the assistance provided by the landlord then came to an end.
On 4 April 2024 the landlord applied to the Tribunal for an order terminating the tenancy.
I understand the landlord proposed a mediation in order to try and resolve their concerns, but the tenant declined to proceed with a mediation process.
The dispute now comes to the Tribunal to be adjudicated.
I convened a hearing in the North Shore on 21 August 2024. While the tenant was not in attendance, the tenant was legally represented by Mr Leighton (attending by telephone), and the landlord legally represented by Mr Sizer and Ms Sinclair appearing in person.

LANDLORDS CASE

The landlord’s position is that the tenant has breached her obligation to ensure that the premises remain reasonably clean and tidy throughout the tenancy. The landlord seeks a termination of the tenancy under section 56 of the Residential Tenancies Act 1986 (RTA), or in the alternative under section 55.

TENANTS CASE

The tenant opposes the application for termination. Mr Leighton filed written submissions setting out the nature of that opposition. I will not record that here, but will address the arguments below.

RELEVANT LAW

The Tribunal applies the usual civil law standards and expectations.
One of the central expectations relates to onus of proof. With any claim before the Tribunal, it is the applicant who must establish the claim, or to put that another way, the applicant must prove the claim. If the applicant does not provide sufficient evidence and reasoning to establish the claim, then it must be dismissed.
The Tribunal requires the applicant to establish their claim to the balance of probabilities. That means that the applicant must show that what they are claiming is more likely than not. To put that into a mathematical context, the applicant must prove their claim to just over the 50% probability mark. Again if the claim is not established to the balance of probability, it must be dismissed.

ANALYSIS

I will now consider the application from the landlord, being an application under sections 56 and 55. I will do that first, and then consider more fully one of the defences presented.
There is no dispute between the parties that this is a residential tenancy for which the Residential Tenancies Act 1986 (RTA) applies, but for completeness I agree that this would fall within the RTA, meaning the Tribunal has jurisdiction to consider this application.
The RTA sets out the primary all that exists between tenants and landlords in New Zealand. The Act includes a range of expectations that exists between tenants and landlords, and in section 40 the Act sets out the tenant’s responsibilities. That includes at section 40(1)(c) that the tenant shall: Keep the premises reasonably clean and reasonably tidy
I record at this time, that based on the photographs provided, I have seen no evidence that at any time at least over the past year, that the premises would have met the standard of being reasonably clean and tidy, in fact, the standard is well below the minimum expectation that would arise for the tenant. I have no doubt that the state of the premises presents an unacceptable health risk for not only the tenant but anyone inside this dwelling. To that extent, there is no doubt that the tenant has failed to comply with her obligations under section 40 above.
In circumstances such as this, what is normally seen is that the landlord will raise the breach with the tenant, and that is just what the landlord has done here. I can see that the landlord has engaged with the tenant fulsomely and that includes issuing a notice to the tenant requiring the tenant to address the breach but she has not done so. That notice was also extended but still not complied with fully.
Ultimately the landlord seeks a termination of the tenancy, and that is the matter the Tribunal must now decide. Termination under section 56
Section 56 is a termination provision, and holds: (1) On an application made to it under this section by the landlord or the tenant, the Tribunal may make an order terminating the tenancy if the Tribunal is satisfied that— (a) the other party has committed a breach of any of the provisions of the tenancy agreement (including provisions relating to the payment of rent) or of this Act; and (b) in the case of a breach capable of remedy,— (i) the applicant gave to the other party a notice specifying the nature of the breach complained of and requiring the other party to remedy the breach within a reasonable period, being not less than 14 days commencing with the day on which the notice was given; and (ii) the other party failed to remedy the default within the required period; and (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.
Accordingly, were an application to terminate under section 56 is made, there are three broad considerations the Tribunal must make, those are: a. Whether the tenant has breached a provision of the tenancy agreement or RTA; and b. If the breach is capable of remedy, whether the landlord has given a notice to remedy the breach, that has not been complied with; and c. Whether the breach is of such a nature or extent, that it would be inequitable to decline termination.
I will now consider those criteria. a. Whether the tenant has breached a provision of the tenancy agreement or RTA; and
As I have explained above, there is no doubt that the tenant has breached her obligation under the RTA, she has not kept the premises reasonably clean and tidy.
Mr Leighton advised me that the tenant is a professional cat breeder. While that may well be the case, that does not absolve the tenant of her responsibility to keep the premises reasonably clean and tidy. b. If the breach is capable of remedy, whether the landlord has given a notice to remedy the breach, that has not been complied with; and
The landlord has given the tenant notice to remedy the breach (which was extended), and I find by a very comfortable margin that the tenant has failed to comply with that notice. c. Whether the breach is of such a nature or extent, that it would be inequitable to decline termination
Mr Leighton referred me to the District Court decision of Vincent Dean Huff v City Central Property Management [2020] NZDC 19229 (Judge Rowe), the Court needed to consider the extent of section 56(1)(c), which requires consideration of whether 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.
I agree that is the leading case in considering that sub-subsection. The Court set out a range of factors that would be relevant in that case, being:
The history of the tenancy.
Whether there had been a persistent failure after repeated warnings.
Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future.
Whether the breach was inadvertent or deliberately committed.
The conduct of the landlord.
The gravity of the breach.
Whether termination is a proportionate response to the breach.
I have considered those factors, and conclude that declining to terminate the tenancy would be inequitable, meaning the tenancy termination must be ordered, for these reasons.
In terms of the history of the tenancy, there is an unusually long landlord-tenant history, in connection with the tenant’s employment. The evidence supports a conclusion that the landlord has been very supportive of the tenant in resolving the breach, more than the Tribunal would normally see in a landlord-tenant relationship. The landlord has worked with the tenant to get the breach resolved. While the tenant’s position is that the termination is for ulterior motives, as I will explain below I do not accept that is the case.
In this case, there have been persistent failures despite repeated warnings from the landlord. Mr Leighton submitted that there were no such warnings, but I disagree with that. The tenant was put on notice early that there was a risk that failing to return the premises to a state of being reasonably clean and tidy, may result in an application to terminate her tenancy in the Tribunal, and there has clearly been considerable engagement from the landlord. I am sure the tenant was aware of what her obligations were.
The third question is whether the history would suggest that there would be continued non-compliance into the future by the tenant. I am left with the inescapable conclusion that even if the premises were returned to a reasonable state of cleanliness today, the situation at the tenancy would return, I could have no confidence that the tenant would maintain the tenancy to a reasonable state. I observe that even at the time of the hearing, the tenant has provided no evidence that she has the premises reasonably clean and tidy.
The breach is most likely deliberate, in the sense that a tenant makes decisions around how she deals with her belongings, rubbish, and pets etc, but I am also sure the tenant did not set out on a deliberate course intending to breach her obligations.
As I have indicated above, I consider that the conduct of the landlord has been very good, perhaps exemplary. The landlord has gone well beyond what a landlord would be expected to do in supporting the tenant to get the premises returned to a state of cleanliness. The landlord has expended significant sums of money on cleaners and skip bins, as well as supporting the tenant as best it could. The landlord here has gone far beyond what a landlord needs to do.
The gravity of the breach in my assessment, is significant. I am certain a significant risk to health exists in the premises. As I will discuss shortly, I consider the tenant has materially damaged the premises, again going to gravity.
Terminating the tenancy in this case would be proportionate to the breach.
For the above reasons, I conclude that it would be inequitable to refuse termination of the tenancy, given the nature and extent of the breach. Conclusion on section 56
For the above reasons, I find that the landlord’s application for termination under section 56 has been established and must be ordered. Termination under section 55
In the alternative, the landlord seeks an order terminating the tenancy under section 55.
I note section 56(2) confirms that if the landlord applies to terminate the tenancy under section 56, if at the time of determining the matter the landlord could have made an application under section 55, the Tribunal shall determine the matter if the application has been made under section 55.
Section 55 is also a general termination provision, which confirms at section 55(1)(b) that the Tribunal shall order termination of the tenancy if: the tenant has caused, or has permitted any other person to cause, or has threatened to cause, substantial damage to the premises;
In terms of the necessary standard that needs to be met, Mr Leighton submitted that: In the case of Morton v Barnhorn, TT189 & 302/97, DC Dunedin, 27 April 1997 the Judge stated, “Substantial damage must in my opinion be noteworthy and of considerable amount or value”. The Court went on to consider the definition of substantial damage stating, “The Shorter Oxford Dictionary defines ‘substantial’ as being of ample or considerable amount, quantity or dimensions ...”.
Based on the evidence provided during the inspections, which is supported in the photographs, I accept that the tenant has caused substantial damage to the premises as a consequence of rubbish and uncleanliness of the dwelling, and her pets. The evidence is that wall linings need to be replaced, as does cabinetry and curtains. While the damage would have occurred over a reasonably long period of time, it would still meet the definition of being substantial damage given the extent of the remediation work that would be needed to the dwelling.
Taking account of the approach of the Court in Morton v Barnhorn, the damage is noteworthy and of considerable amount or value, and also of ample or considerable in amount, quantity or dimension.
I find therefore that the damage would be substantial damage.
Accordingly, even if I was wrong in my assessment regarding a termination under section 56, I would nevertheless have ordered termination under section 55. Tenant’s further defences to the claims
It was submitted that the tenant was assaulted by a prisoner who had escaped from his cell. The tenant’s position is that this was criminal conduct on the part of the employer, which is the landlord. It was submitted that the tenant developed significant mental and physical injuries from that, and a private prosecution of Corrections is currently underway. Ex Turpia Causa
The tenant’s position is that the application should be dismissed based on an argument an equitable remedy of Ex Turpia Causa applies, which in short means that ‘a plaintiff or applicant should not benefit from their criminal or immoral conduct’.
I disagree with Mr Sizer that this argument could not be made as a defence to a claim under section 56. In my view the considerations required under section 56(1)(c) as summarised by Judge Rowe above, are broad, and could certainly take account of some improper motivation on the part of the landlord.
But I cannot see any improper motivation existing here. Putting to one side that the tenant has not proven immoral or criminal conduct on the part of the landlord, it is plain to me that the state of the premises is such that no reasonable landlord would not intervene. Furthermore, here the landlord has gone well beyond what would be expected to support the tenant. If the tenant had accepted and worked with the landlord to get the premises reasonably clean and tidy (as the law requires of her) I am certain this application would not have come to the Tribunal.
Mr Leighton refers me to Brown v Dunsmuir [1994] 3 NZLR 485 in support of this defence. The Court in Brown referred to another decision with approval which said: The ex turpi causa defence ultimately rests on a principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct of which the courts should take notice. It applies if in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court could thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts: see (2)(iii) below.
I have seen no evidence or sustainable argument that allowing the landlord’s claim would be an affront to the public conscience, and I cannot see how it could be argued that ordering termination would assist the landlord or any other landlord in engaging in illegal conduct.
I find this defence to the claim has not been established.

CONCLUSION

The application for termination is granted. In the unique circumstances of this case, I consider a generous period of time in order to vacate the premises is required, and set that one month.

NAME SUPPRESSION AND COSTS

The landlord does not seek name suppression. Mr Leighton advised that the tenant does not request name suppression. Therefore no order for name suppression is made.

COSTS

Because the landlord was represented, the landlord would be entitled to costs, but confirmed that costs are not sought in this case, so no costs order is made.

Order

The tenancy of Sharon Irwin at 60 Hitchcock Crescent, Paremoremo, Auckland 0632 is terminated, and possession is granted to the New Zealand Department of Corrections at 11:59pm on 23 September 2024.

Reasons

The Tribunal must consider an application filed by the landlord against the tenant, being an application for termination of the tenancy on the grounds of the state of the premises.

BACKGROUND

The background in this case is not in dispute, and can be summarised fairly succinctly as follows.
Ms Irwin is an employee of the Department of Corrections. As part of her employment, she rents a house located on Corrections property, in this case, Auckland Prison, which is known as the ‘Auckland Housing Village’. I understand that Ms Irwin has lived there for some 20 years.
For practical purposes, the tenancy is managed by an independent contractor, Colliers as the property manager.
In August 2023 Colliers undertook an inspection of the premises. The Tribunal has been provided with photographs from that inspection. The inspection report describes the findings as follows: a. The floor was covered with debris and cat faeces. b. Piles of belongings and rubbish throughout the premises. c. The premises being in a “very unhygienic state”, with benchtops being inaccessible. d. Heavily oxidised electrical fittings, with mould and moisture evident because doors could not be closed given the content of the dwelling. e. Some rooms being inaccessible due to rubbish and cat faeces present. f. Large numbers of flies present.
The Property Manager summarised the situation as follows: As noted, the tenant has between 20 and 30 cats in the property. Some are in cages and some are noted to have suffered a parasitic infection which has caused masses of faeces to accumulate in the property. There are multiple items of the tenants throughout the property and bags of rubbish also. The overall condition would be regarded as unsanitary and a risk to the health of the occupant, their pets and any visitors to the property. Estimate there’s approximately 10 skip loads of items would be present at the property and would require disposal. Remediation of the property would require forensic cleaning, in addition to the replacement of all wall linings, ceilings, curtains, bathroom [fittings and fixtures], kitchen [fittings and fixtures].
Having considered the photographs for myself, I consider that the description provided by the property manager was fair and accurate.
The property manager then engaged with Ms Irwin and raised with her that she had breached her tenancy obligations. Ms Irwin requested at least six months in order to clean her house, as she had physical constraints and only four days off each fortnight.
On 20 October 2023, the landlord issued a breach notice, giving the tenant four months in order to remove all rubbish from the property, undertake cleaning, and return the property to a reasonable standard. The landlord warned the tenant that if the premises were not remediated by 20 February 2024, the landlord may apply to the Tribunal for a termination of the tenancy.
In early 2024, the landlord advised following further assessments that there had been a little improvement, and the notice period for the work to be completed was extended to 5 March 2024.
It is also evident that the landlord heavily engaged with the tenant, in providing support and assistance to have the premises cleaned. I note for example an invoice from Spotless from 30 April 2024 Recording 132 hours of assistance with commercial cleaning, and also an invoice for the skip bins.
Some reduction in items in the tenancy occurred, but there is an indication that when some rooms were cleaned and emptied, the tenant would then move other belongings into that tidied room. The most recent comprehensive photographs available are from March 2024. Those show shoe some areas being uncluttered, but still unclean, and some very cluttered and unhygienic areas.
The landlord appointed Downer to undertake the cleaning and decluttering work in concert with the tenant. However, emails from early and March 2024, indicate that things did not go well, and in effect, the tenant has declined consent for Downer to continue their work, and my impression is that the assistance provided by the landlord then came to an end.
On 4 April 2024 the landlord applied to the Tribunal for an order terminating the tenancy.
I understand the landlord proposed a mediation in order to try and resolve their concerns, but the tenant declined to proceed with a mediation process.
The dispute now comes to the Tribunal to be adjudicated.
I convened a hearing in the North Shore on 21 August 2024. While the tenant was not in attendance, the tenant was legally represented by Mr Leighton (attending by telephone), and the landlord legally represented by Mr Sizer and Ms Sinclair appearing in person.

LANDLORDS CASE

The landlord’s position is that the tenant has breached her obligation to ensure that the premises remain reasonably clean and tidy throughout the tenancy. The landlord seeks a termination of the tenancy under section 56 of the Residential Tenancies Act 1986 (RTA), or in the alternative under section 55.

TENANTS CASE

The tenant opposes the application for termination. Mr Leighton filed written submissions setting out the nature of that opposition. I will not record that here, but will address the arguments below.

RELEVANT LAW

The Tribunal applies the usual civil law standards and expectations.
One of the central expectations relates to onus of proof. With any claim before the Tribunal, it is the applicant who must establish the claim, or to put that another way, the applicant must prove the claim. If the applicant does not provide sufficient evidence and reasoning to establish the claim, then it must be dismissed.
The Tribunal requires the applicant to establish their claim to the balance of probabilities. That means that the applicant must show that what they are claiming is more likely than not. To put that into a mathematical context, the applicant must prove their claim to just over the 50% probability mark. Again if the claim is not established to the balance of probability, it must be dismissed.

ANALYSIS

I will now consider the application from the landlord, being an application under sections 56 and 55. I will do that first, and then consider more fully one of the defences presented.
There is no dispute between the parties that this is a residential tenancy for which the Residential Tenancies Act 1986 (RTA) applies, but for completeness I agree that this would fall within the RTA, meaning the Tribunal has jurisdiction to consider this application.
The RTA sets out the primary all that exists between tenants and landlords in New Zealand. The Act includes a range of expectations that exists between tenants and landlords, and in section 40 the Act sets out the tenant’s responsibilities. That includes at section 40(1)(c) that the tenant shall: Keep the premises reasonably clean and reasonably tidy
I record at this time, that based on the photographs provided, I have seen no evidence that at any time at least over the past year, that the premises would have met the standard of being reasonably clean and tidy, in fact, the standard is well below the minimum expectation that would arise for the tenant. I have no doubt that the state of the premises presents an unacceptable health risk for not only the tenant but anyone inside this dwelling. To that extent, there is no doubt that the tenant has failed to comply with her obligations under section 40 above.
In circumstances such as this, what is normally seen is that the landlord will raise the breach with the tenant, and that is just what the landlord has done here. I can see that the landlord has engaged with the tenant fulsomely and that includes issuing a notice to the tenant requiring the tenant to address the breach but she has not done so. That notice was also extended but still not complied with fully.
Ultimately the landlord seeks a termination of the tenancy, and that is the matter the Tribunal must now decide. Termination under section 56
Section 56 is a termination provision, and holds: (1) On an application made to it under this section by the landlord or the tenant, the Tribunal may make an order terminating the tenancy if the Tribunal is satisfied that— (a) the other party has committed a breach of any of the provisions of the tenancy agreement (including provisions relating to the payment of rent) or of this Act; and (b) in the case of a breach capable of remedy,— (i) the applicant gave to the other party a notice specifying the nature of the breach complained of and requiring the other party to remedy the breach within a reasonable period, being not less than 14 days commencing with the day on which the notice was given; and (ii) the other party failed to remedy the default within the required period; and (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.
Accordingly, were an application to terminate under section 56 is made, there are three broad considerations the Tribunal must make, those are: a. Whether the tenant has breached a provision of the tenancy agreement or RTA; and b. If the breach is capable of remedy, whether the landlord has given a notice to remedy the breach, that has not been complied with; and c. Whether the breach is of such a nature or extent, that it would be inequitable to decline termination.
I will now consider those criteria. a. Whether the tenant has breached a provision of the tenancy agreement or RTA; and
As I have explained above, there is no doubt that the tenant has breached her obligation under the RTA, she has not kept the premises reasonably clean and tidy.
Mr Leighton advised me that the tenant is a professional cat breeder. While that may well be the case, that does not absolve the tenant of her responsibility to keep the premises reasonably clean and tidy. b. If the breach is capable of remedy, whether the landlord has given a notice to remedy the breach, that has not been complied with; and
The landlord has given the tenant notice to remedy the breach (which was extended), and I find by a very comfortable margin that the tenant has failed to comply with that notice. c. Whether the breach is of such a nature or extent, that it would be inequitable to decline termination
Mr Leighton referred me to the District Court decision of Vincent Dean Huff v City Central Property Management [2020] NZDC 19229 (Judge Rowe), the Court needed to consider the extent of section 56(1)(c), which requires consideration of whether 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.
I agree that is the leading case in considering that sub-subsection. The Court set out a range of factors that would be relevant in that case, being:
The history of the tenancy.
Whether there had been a persistent failure after repeated warnings.
Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future.
Whether the breach was inadvertent or deliberately committed.
The conduct of the landlord.
The gravity of the breach.
Whether termination is a proportionate response to the breach.
I have considered those factors, and conclude that declining to terminate the tenancy would be inequitable, meaning the tenancy termination must be ordered, for these reasons.
In terms of the history of the tenancy, there is an unusually long landlord-tenant history, in connection with the tenant’s employment. The evidence supports a conclusion that the landlord has been very supportive of the tenant in resolving the breach, more than the Tribunal would normally see in a landlord-tenant relationship. The landlord has worked with the tenant to get the breach resolved. While the tenant’s position is that the termination is for ulterior motives, as I will explain below I do not accept that is the case.
In this case, there have been persistent failures despite repeated warnings from the landlord. Mr Leighton submitted that there were no such warnings, but I disagree with that. The tenant was put on notice early that there was a risk that failing to return the premises to a state of being reasonably clean and tidy, may result in an application to terminate her tenancy in the Tribunal, and there has clearly been considerable engagement from the landlord. I am sure the tenant was aware of what her obligations were.
The third question is whether the history would suggest that there would be continued non-compliance into the future by the tenant. I am left with the inescapable conclusion that even if the premises were returned to a reasonable state of cleanliness today, the situation at the tenancy would return, I could have no confidence that the tenant would maintain the tenancy to a reasonable state. I observe that even at the time of the hearing, the tenant has provided no evidence that she has the premises reasonably clean and tidy.
The breach is most likely deliberate, in the sense that a tenant makes decisions around how she deals with her belongings, rubbish, and pets etc, but I am also sure the tenant did not set out on a deliberate course intending to breach her obligations.
As I have indicated above, I consider that the conduct of the landlord has been very good, perhaps exemplary. The landlord has gone well beyond what a landlord would be expected to do in supporting the tenant to get the premises returned to a state of cleanliness. The landlord has expended significant sums of money on cleaners and skip bins, as well as supporting the tenant as best it could. The landlord here has gone far beyond what a landlord needs to do.
The gravity of the breach in my assessment, is significant. I am certain a significant risk to health exists in the premises. As I will discuss shortly, I consider the tenant has materially damaged the premises, again going to gravity.
Terminating the tenancy in this case would be proportionate to the breach.
For the above reasons, I conclude that it would be inequitable to refuse termination of the tenancy, given the nature and extent of the breach. Conclusion on section 56
For the above reasons, I find that the landlord’s application for termination under section 56 has been established and must be ordered. Termination under section 55
In the alternative, the landlord seeks an order terminating the tenancy under section 55.
I note section 56(2) confirms that if the landlord applies to terminate the tenancy under section 56, if at the time of determining the matter the landlord could have made an application under section 55, the Tribunal shall determine the matter if the application has been made under section 55.
Section 55 is also a general termination provision, which confirms at section 55(1)(b) that the Tribunal shall order termination of the tenancy if: the tenant has caused, or has permitted any other person to cause, or has threatened to cause, substantial damage to the premises;
In terms of the necessary standard that needs to be met, Mr Leighton submitted that: In the case of Morton v Barnhorn, TT189 & 302/97, DC Dunedin, 27 April 1997 the Judge stated, “Substantial damage must in my opinion be noteworthy and of considerable amount or value”. The Court went on to consider the definition of substantial damage stating, “The Shorter Oxford Dictionary defines ‘substantial’ as being of ample or considerable amount, quantity or dimensions ...”.
Based on the evidence provided during the inspections, which is supported in the photographs, I accept that the tenant has caused substantial damage to the premises as a consequence of rubbish and uncleanliness of the dwelling, and her pets. The evidence is that wall linings need to be replaced, as does cabinetry and curtains. While the damage would have occurred over a reasonably long period of time, it would still meet the definition of being substantial damage given the extent of the remediation work that would be needed to the dwelling.
Taking account of the approach of the Court in Morton v Barnhorn, the damage is noteworthy and of considerable amount or value, and also of ample or considerable in amount, quantity or dimension.
I find therefore that the damage would be substantial damage.
Accordingly, even if I was wrong in my assessment regarding a termination under section 56, I would nevertheless have ordered termination under section 55. Tenant’s further defences to the claims
It was submitted that the tenant was assaulted by a prisoner who had escaped from his cell. The tenant’s position is that this was criminal conduct on the part of the employer, which is the landlord. It was submitted that the tenant developed significant mental and physical injuries from that, and a private prosecution of Corrections is currently underway. Ex Turpia Causa
The tenant’s position is that the application should be dismissed based on an argument an equitable remedy of Ex Turpia Causa applies, which in short means that ‘a plaintiff or applicant should not benefit from their criminal or immoral conduct’.
I disagree with Mr Sizer that this argument could not be made as a defence to a claim under section 56. In my view the considerations required under section 56(1)(c) as summarised by Judge Rowe above, are broad, and could certainly take account of some improper motivation on the part of the landlord.
But I cannot see any improper motivation existing here. Putting to one side that the tenant has not proven immoral or criminal conduct on the part of the landlord, it is plain to me that the state of the premises is such that no reasonable landlord would not intervene. Furthermore, here the landlord has gone well beyond what would be expected to support the tenant. If the tenant had accepted and worked with the landlord to get the premises reasonably clean and tidy (as the law requires of her) I am certain this application would not have come to the Tribunal.
Mr Leighton refers me to Brown v Dunsmuir [1994] 3 NZLR 485 in support of this defence. The Court in Brown referred to another decision with approval which said: The ex turpi causa defence ultimately rests on a principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct of which the courts should take notice. It applies if in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court could thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts: see (2)(iii) below.
I have seen no evidence or sustainable argument that allowing the landlord’s claim would be an affront to the public conscience, and I cannot see how it could be argued that ordering termination would assist the landlord or any other landlord in engaging in illegal conduct.
I find this defence to the claim has not been established.

CONCLUSION

The application for termination is granted. In the unique circumstances of this case, I consider a generous period of time in order to vacate the premises is required, and set that one month.

NAME SUPPRESSION AND COSTS

The landlord does not seek name suppression. Mr Leighton advised that the tenant does not request name suppression. Therefore no order for name suppression is made.

COSTS

Because the landlord was represented, the landlord would be entitled to costs, but confirmed that costs are not sought in this case, so no costs order is made.

Tenancy Tribunal case 4852083 — 14-day notice at 60 Hitchcock Crescent, Paremoremo, Auckland 0632

At a glance

Tenancy Tribunal case 4852083 — 14-day notice at 60 Hitchcock Crescent, Paremoremo, Auckland 0632

At a glance

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS CASE

TENANTS CASE

RELEVANT LAW

ANALYSIS

CONCLUSION

NAME SUPPRESSION AND COSTS

COSTS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS CASE

TENANTS CASE

RELEVANT LAW

ANALYSIS

CONCLUSION

NAME SUPPRESSION AND COSTS

COSTS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions