What was the outcome of Tenancy Tribunal case 4885260?

The tribunal order states: The tenancy of Mark Mclaughlin at 14B Harman Street, Addington, Christchurch

How much money was awarded in case 4885260?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4885260?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4885260?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10529573-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4885260?

The tribunal order states: The tenancy of Mark Mclaughlin at 14B Harman Street, Addington, Christchurch

How much money was awarded in case 4885260?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4885260?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4885260?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10529573-Tenancy_Tribunal_Order.pdf.

14B Harman Street, Addington, Christchurch 8024 Tenancy Tribunal Case 4885260 — 14-day notice

Order

The tenancy of Mark Mclaughlin at 14B Harman Street, Addington, Christchurch 8024 is terminated, and possession is granted to Otautahi Community Housing Trust, at 12 noon on Wednesday, 10 July 2024.
Mark Mclaughlin must pay Otautahi Community Housing Trust $20.44 immediately, being the Tribunal application fee .

Reasons

Representatives of the landlord attended the hearing. The tenant did not attend.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations. The landlord claims that the tenant has used the premises for an unlawful purpose in breach of s40(2)(b) Residential Tenancies Act 1986 (RTA).

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate (see s 56(1) RTA).
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant to remedy the breach, although the Tribunal may consider whether a warning should have been given when determining whether it would be inequitable to refuse to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours.
Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent.
The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: [46] Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). The breach irremediably arises when the specified failure occurs. [47] It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. The same may apply where there has been a persistent series of breaches, for example, where a tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours.
In this case, the landlord alleges that the tenant used methamphetamine at the premises in breach of s40(2)(b) RTA and the Misuse of Drugs Act 1975. There can be no dispute that the using or permitting the use of methamphetamine at the premises is an unlawful act and a breach of s40(2)(b) RTA.
The landlord did issue a 14-day notice, but not until May 2024 and has not provided any evidence of continued use after that date. So, the issues I must consider are: a. Has the landlord established that is more likely than not that the tenant has used, or allowed the use of methamphetamine at the premises? b. If so, was the breach capable of remedy? c. Is the breach of such a nature and extent that it would be inequitable to refuse termination?
The landlord provided evidence which establishes that it is more likely than not that the tenant, or someone at the premises with their permission, has used methamphetamine at the premises during the tenancy: a. Testing carried out on 4 December 2023 shows composite sample results (2 samples per test) as follows (expressed as micrograms per 100cm²) – Entrance 20, Bedroom 5.7, Living 5.9, Kitchen 33, Bathroom 1.48. b. Identical testing was repeated on 6 May 2024 and shows results of – Entrance 38, Bedroom 10.3, Living 13.8, Kitchen 28, Bathroom 3.2.
The tenant did not attend the hearing to give any evidence about how the increase in methamphetamine residue at the premises might have been caused. However, based on all the available evidence, I find on the balance of probabilities that methamphetamine was used by the tenant, or someone living at the property with the tenant’s permission, during the tenancy.
I find that the breach is not capable of remedy. In the District Court decision of Clarke v Housing New Zealand (CIV 2008-006-000033) the Judge considered whether a breach of the Misuse of Drugs Act 1975 was a breach capable of remedy under the RTA. The Judge confirmed that: [38] In my view, this is one of those breaches which is incapable of remedy. This is one of those situations where there was a breach of a negative requirement on the tenant not to commit an unlawful act on the property.
It would be inequitable to refuse termination. This is a social housing complex. The landlord gave evidence of its desire to minimise the harm associated with unlawful and antisocial behaviours at its complexes.
The tenancy is terminated. As the landlord was the successful party, I have awarded reimbursement of the Tribunal application fee.

Order

The tenancy of Mark Mclaughlin at 14B Harman Street, Addington, Christchurch 8024 is terminated, and possession is granted to Otautahi Community Housing Trust, at 12 noon on Wednesday, 10 July 2024.
Mark Mclaughlin must pay Otautahi Community Housing Trust $20.44 immediately, being the Tribunal application fee .

Reasons

Representatives of the landlord attended the hearing. The tenant did not attend.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations. The landlord claims that the tenant has used the premises for an unlawful purpose in breach of s40(2)(b) Residential Tenancies Act 1986 (RTA).

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate (see s 56(1) RTA).
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant to remedy the breach, although the Tribunal may consider whether a warning should have been given when determining whether it would be inequitable to refuse to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours.
Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent.
The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: [46] Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). The breach irremediably arises when the specified failure occurs. [47] It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. The same may apply where there has been a persistent series of breaches, for example, where a tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours.
In this case, the landlord alleges that the tenant used methamphetamine at the premises in breach of s40(2)(b) RTA and the Misuse of Drugs Act 1975. There can be no dispute that the using or permitting the use of methamphetamine at the premises is an unlawful act and a breach of s40(2)(b) RTA.
The landlord did issue a 14-day notice, but not until May 2024 and has not provided any evidence of continued use after that date. So, the issues I must consider are: a. Has the landlord established that is more likely than not that the tenant has used, or allowed the use of methamphetamine at the premises? b. If so, was the breach capable of remedy? c. Is the breach of such a nature and extent that it would be inequitable to refuse termination?
The landlord provided evidence which establishes that it is more likely than not that the tenant, or someone at the premises with their permission, has used methamphetamine at the premises during the tenancy: a. Testing carried out on 4 December 2023 shows composite sample results (2 samples per test) as follows (expressed as micrograms per 100cm²) – Entrance 20, Bedroom 5.7, Living 5.9, Kitchen 33, Bathroom 1.48. b. Identical testing was repeated on 6 May 2024 and shows results of – Entrance 38, Bedroom 10.3, Living 13.8, Kitchen 28, Bathroom 3.2.
The tenant did not attend the hearing to give any evidence about how the increase in methamphetamine residue at the premises might have been caused. However, based on all the available evidence, I find on the balance of probabilities that methamphetamine was used by the tenant, or someone living at the property with the tenant’s permission, during the tenancy.
I find that the breach is not capable of remedy. In the District Court decision of Clarke v Housing New Zealand (CIV 2008-006-000033) the Judge considered whether a breach of the Misuse of Drugs Act 1975 was a breach capable of remedy under the RTA. The Judge confirmed that: [38] In my view, this is one of those breaches which is incapable of remedy. This is one of those situations where there was a breach of a negative requirement on the tenant not to commit an unlawful act on the property.
It would be inequitable to refuse termination. This is a social housing complex. The landlord gave evidence of its desire to minimise the harm associated with unlawful and antisocial behaviours at its complexes.
The tenancy is terminated. As the landlord was the successful party, I have awarded reimbursement of the Tribunal application fee.

Tenancy Tribunal case 4885260 — 14-day notice at 14B Harman Street, Addington, Christchurch 8024

At a glance

Tenancy Tribunal case 4885260 — 14-day notice at 14B Harman Street, Addington, Christchurch 8024

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions