What was the outcome of Tenancy Tribunal case 4975733?

The tribunal order states: The tenancy of Lynlie Beazley and Frederick Williams at Unit/Flat 5, 242 Great

How much money was awarded in case 4975733?

Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 4975733?

The dispute type was not classified.

Where can I read the official tribunal order for case 4975733?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11016492-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4975733?

The tribunal order states: The tenancy of Lynlie Beazley and Frederick Williams at Unit/Flat 5, 242 Great

How much money was awarded in case 4975733?

Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 4975733?

The dispute type was not classified.

Where can I read the official tribunal order for case 4975733?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11016492-Tenancy_Tribunal_Order.pdf.

Unit/Flat 5, 242 Great North Road, Henderson, Auckland Tenancy Tribunal Case 4975733 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4975733 — net $27.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$27.00
Total payable by Tenant to Landlord	$27.00

Order

The tenancy of Lynlie Beazley and Frederick Williams at Unit/Flat 5, 242 Great North Road, Henderson, Auckland 0612 is terminated, and possession is granted to Abode Property Management Limited, at 11.59 am on Friday 8 November 2024.
Lynlie Beazley and Frederick Williams must pay Abode Property Management Limited $27.00 immediately, calculated as shown in the table below:
All other applications are dismissed.

Reasons

Both parties attended this video hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, compensation and reimbursement of the filing fee.

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 section 56(1) Residential Tenancies Act 1986 (“RTA”).
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.
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.
The tenancy agreement provides that no pets are allowed without the prior approval of the landlord.
At no time did the tenant seek approval from the landlord to keep a pet.
The landlord received a number of complaints from neighbouring tenants at the complex that the tenant had a dog. The property manager saw the dog at the premises. The tenant in her evidence did not dispute that she had a dog.
On 29 February 2024 the landlord served a 14 day breach notice on the tenant. The notice recorded that the tenant was not allowed to have a dog on the premises and that she had 14 days to remedy that situation.
The tenant has not complied with the notice. A number of complaints have been received about the dog since 14 March 2024, when the notice expired. As recently as a week ago, the dog was seen on the premises by the property manager.
The property manager said that the dog was medium to large in size, but was not certain of the breed. She said that some of the tenants were scared of the dog.
The tenant has entered into a tenancy agreement on the understanding that no dogs were allowed. Section 11 (“RTA”) allows parties to enter into agreements which are inconsistent with the provisions of the RTA where the Tribunal is satisfied having regard to the tenancy, the provisions of the tenancy agreement, the interests of the parties and all other relevant circumstances that the restriction should be permitted.
The tenancy agreement clearly excludes having pets without the prior approval of the landlord. No prior approval was sought. This is a residential complex with many neighbouring tenants. In those circumstances, I consider that the clause restricting pets is reasonable.
Having found that the tenant has not complied with the 14 day notice, I must consider if it would be inequitable not to terminate the tenancy.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.
The tenant has breached their obligations by keeping the dog.
The tenancy history shows that the breach has been ongoing since early 2024
There have been persistent breaches, despite assurances that the dog would be removed. That history of breaches is such that in the Tribunal’s view it is unlikely that the tenant will comply with her obligations in the future.
The tenant has been made fully aware of her breach. The breach has been a deliberate act by the tenant.
The breach is serious. The landlord has received numerous complaints and other tenants are fearful of the dog.
Termination of the tenancy is not a disproportionate response to the ongoing breach.
It would be inequitable to refuse to terminate the tenancy for the reasons set out above. The tenancy is terminated. I have given the tenant an extended period prior to termination of the tenancy as finding alternative accommodation will no doubt be difficult.
The landlord applied for compensation for carpet cleaning. No evidence was provided in support of the claim. The Tribunal would usually expect to see photos of the damage and an invoice or quote for the repairs. That evidence was not provided and the application is dismissed.
As Abode Property Management Limited has substantially succeeded with the claim I have ordered the tenant to reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4975733 — net $27.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$27.00
Total payable by Tenant to Landlord	$27.00

Order

The tenancy of Lynlie Beazley and Frederick Williams at Unit/Flat 5, 242 Great North Road, Henderson, Auckland 0612 is terminated, and possession is granted to Abode Property Management Limited, at 11.59 am on Friday 8 November 2024.
Lynlie Beazley and Frederick Williams must pay Abode Property Management Limited $27.00 immediately, calculated as shown in the table below:
All other applications are dismissed.

Reasons

Both parties attended this video hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, compensation and reimbursement of the filing fee.

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 section 56(1) Residential Tenancies Act 1986 (“RTA”).
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.
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.
The tenancy agreement provides that no pets are allowed without the prior approval of the landlord.
At no time did the tenant seek approval from the landlord to keep a pet.
The landlord received a number of complaints from neighbouring tenants at the complex that the tenant had a dog. The property manager saw the dog at the premises. The tenant in her evidence did not dispute that she had a dog.
On 29 February 2024 the landlord served a 14 day breach notice on the tenant. The notice recorded that the tenant was not allowed to have a dog on the premises and that she had 14 days to remedy that situation.
The tenant has not complied with the notice. A number of complaints have been received about the dog since 14 March 2024, when the notice expired. As recently as a week ago, the dog was seen on the premises by the property manager.
The property manager said that the dog was medium to large in size, but was not certain of the breed. She said that some of the tenants were scared of the dog.
The tenant has entered into a tenancy agreement on the understanding that no dogs were allowed. Section 11 (“RTA”) allows parties to enter into agreements which are inconsistent with the provisions of the RTA where the Tribunal is satisfied having regard to the tenancy, the provisions of the tenancy agreement, the interests of the parties and all other relevant circumstances that the restriction should be permitted.
The tenancy agreement clearly excludes having pets without the prior approval of the landlord. No prior approval was sought. This is a residential complex with many neighbouring tenants. In those circumstances, I consider that the clause restricting pets is reasonable.
Having found that the tenant has not complied with the 14 day notice, I must consider if it would be inequitable not to terminate the tenancy.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.
The tenant has breached their obligations by keeping the dog.
The tenancy history shows that the breach has been ongoing since early 2024
There have been persistent breaches, despite assurances that the dog would be removed. That history of breaches is such that in the Tribunal’s view it is unlikely that the tenant will comply with her obligations in the future.
The tenant has been made fully aware of her breach. The breach has been a deliberate act by the tenant.
The breach is serious. The landlord has received numerous complaints and other tenants are fearful of the dog.
Termination of the tenancy is not a disproportionate response to the ongoing breach.
It would be inequitable to refuse to terminate the tenancy for the reasons set out above. The tenancy is terminated. I have given the tenant an extended period prior to termination of the tenancy as finding alternative accommodation will no doubt be difficult.
The landlord applied for compensation for carpet cleaning. No evidence was provided in support of the claim. The Tribunal would usually expect to see photos of the damage and an invoice or quote for the repairs. That evidence was not provided and the application is dismissed.
As Abode Property Management Limited has substantially succeeded with the claim I have ordered the tenant to reimburse the filing fee.

Tenancy Tribunal case 4975733 — Tenancy dispute at Unit/Flat 5, 242 Great North Road, Henderson, Auckland

At a glance

Tenancy Tribunal case 4975733 — Tenancy dispute at Unit/Flat 5, 242 Great North Road, Henderson, Auckland

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions