What was the outcome of Tenancy Tribunal case 4980448?

The tribunal order states: Kāinga Ora–Homes and Communities must pay Michael Owen $1,527.00

How much money was awarded in case 4980448?

Property Damage: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4980448?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4980448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11156766-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4980448?

The tribunal order states: Kāinga Ora–Homes and Communities must pay Michael Owen $1,527.00

How much money was awarded in case 4980448?

Property Damage: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4980448?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4980448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11156766-Tenancy_Tribunal_Order.pdf.

Unit/Flat 14, 7 Bayard Street, Ponsonby, Auckland 1011 Tenancy Tribunal Case 4980448 — Property damage

Claims and awards in Tenancy Tribunal application 4980448 — net $1,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: General damages	$1,500.00	General damages
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,527.00
Total payable by Landlord to Tenant	$1,527.00

Claims and awards in Tenancy Tribunal application 4980448 — net $1,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: General damages	$1,500.00	General damages
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,527.00
Total payable by Landlord to Tenant	$1,527.00

Order

Kāinga Ora–Homes and Communities must pay Michael Owen $1,527.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. The Proceedings
The tenant claims that the landlord breached its obligation to him under section 45(1)(e) RTA. That provision requires that the landlord, “...take all reasonable steps to ensure that none of the landlords other tenants causes or permits any interference with the reasonable peace comfort or privacy of the tenant in their use of the premises”.
The tenant claims compensation by way of: a. a rent reimbursment for a period he was not living at the premises; b. reimbursement of lost earnings when he could not use the premises; c. general damages. Background
The tenant has lived at the premises for around 18 years.
In 2022 a new tenant (Ms A) moved into the neighbouring flat at 13/7. Her flat and the tenant’s flat share a wall.
The tenant says that almost immediately, a male acquaintance of Ms A (“Mr B”) moved in. The landlord’s records refer to Mr B as a “visitor” to the premises. The tenant is clear that Mr B was Ms A’s partner and a full time occupant of Flat 13, not a visitor.
In any event there is no dispute that Mr B’s presence in her flat was with Ms A’s consent and Ms A is legally responsible for his conduct while there, under s. 41 RTA, which provides that, “....the tenant shall be responsible for anything done or omitted to be done by any person.....who is in the premises with the tenant’s permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant.”
Records provided by the landlord corroborate the tenant’s evidence that in early May 2024 the tenant contacted the landlord with concerns about a dog having been left unattended at Flat 13. The tenant reported that it was whining and causing disturbance during the night. The tenant had contacted SPCA. The landlord’s records show a discussion with Ms A on 8 May 2024 who told the landlord the dog was only there temporarily.
After another meeting with Ms A on 26 June 2024 a 14 day notice to remedy was issued to her, requiring that she remove the dog from the property.
No meaningful follow up, including simply asking the tenant whether the dog was gone, was undertaken to see whether Ms A had complied with the notice to remedy.
I accept the tenant’s evidence that the dog remained at the property throughout the time that Ms A and Mr B we're living next door. It was the subject of further concerns raised by the tenant with the landlord, as the tenant was concerned the dog was being mistreated.
Between 8 May 2024 and 23 May 2024 the tenant made several reports to the landlord about disturbance from Flat 13 from loud music, construction work and arguments.
On 17 May 2024 the tenant called the police after hearing noises consistent with family violence from Flat 13. The next day Mr B confronted the tenant and The landlord was advised. The e-mail to the landlord the following day states: “Last night Friday 17 May 24 at 3:30am I had to call the police as I feared for the welfare of [Ms A]. Her partner [Mr. B] had strongly issued 2 threats of, "I'm going to beat your F******* head in” I heard a thump of footsteps heading out the door and their car driving away...... this is an ongoing domestic situation of many verbal fights (since not long post their arrival) and strongly foul and aggressive language and behaviours from [Mr. B] to [Ms A]. Often being accompanied by loud music and loud talking up to 4:00am in the morning when I've had to hammer on their wall.....[Mr B] has twice come onto my front porch when I’ve asked this of them threatening me and I have said if you don't go I have to call the police and he has left... This place has felt distinctly unsafe with [Mr. B's ] presence here and his verbal explosive outbursts and I'm seriously concerned for Ms A’s long term welfare. All of the above does not respect peace privacy and respect for neighbourly boundaries. It also feels unsafe to live alongside this behaviour and what he might do to me Ms A or another neighbour with his explosive temper. Both [another neighbour] and I also heard a dog whining again last night.”
On 23 May 2024 the tenant requested a transfer and reported more threats and abuse from Mr B. The tenant’s transfer request was declined
There were further reports from the tenant to the landlord regarding ongoing disturbance, verbal abuse and threats from Mr B.
A visit was made to Ms A on 27 May 2024 regarding the noise, pets and intimidation that had been reported. The notes show that Ms A acknowledged the concerns and stated that they would be more mindful of how their behaviour impact on the neighbours.
The police were involved again after further threats were made against the tenant by Mr B on 29 May 2024.
After the incident on 29 May 2024 a letter was delivered by the landlord to Flat 13 requesting a meeting. Further attempts were made to meet with Ms A, but that meeting didn't happen until 26 June 2024 following which, as noted, the section 56 notice was issued regarding the dog.
On 29 June there was a further incident involving Mr B which is recorded in the Police acknowledgment form as “Threat to kill/ cause GBH manually”
After that incident was brought to the landlord’s attention, a first anti-social behaviour notice under s. 55A RTA was issued to Ms A on 5 July 2024.
The tenant decided to vacate the premises due to fears for his safety. He made an application to the District Court for a restraining order against Mr B under the Harassment Act 1997 but Ms A had been relocated by the landlord before that application was heard.
During July several appointments were made with Ms A to discuss the concerns, but none were able to take place, for various reasons.
A meeting with Ms A took place on 12 August 2024. The landlord’s records show that Ms A agreed that a transfer from that property was necessary. A transfer application was completed.
On 15 August 2024 the tenant reported another serious incident involving Mr B assaulting Ms A, with Mr. B kicking her while she was running up and down the street seeking help.
On 16 August 2024 the police advised the landlord that Mr B had been arrested and taken away, without charges having been laid.
On 21 August 2024, apparently after a further family violence incident on 20 August, Ms A visited the landlord’s offices, accepted support and was referred to the family violence team.
A second s.55A anti-social behaviour notice was issued on 22 August and on 23 August 2024 Ms A’s tenancy ended. Parties’ positions
The landlord’s position is that all reasonable steps were taken by the landlord to address the disruptive behaviour, principally from Mr B (for whom Ms A was responsible) and from Ms A. The landlord’s submission is that, “In situations where family harm is involved, Kainga Ora must carefully balance its obligations to maintain our tenants’ right to quiet enjoyment as well as address the disruption caused by such incidents. Thoughtful attention must be considered when dealing with these matters where the neighbouring customer was clearly in a vulnerable and fragile state, without trying to lay blame on her for these disruptions.”
The tenant’s position is that had Kainga Ora exercised the powers available to it under the RTA earlier, it is likely to have brought the situation to a head and to a resolution, earlier, which was in his interests, and likely in Ms A’s interests as well.
There is no doubt these are difficult situations. Questions about what might have happened had there been different interventions at different times, involve a high degree of conjecture
The question the Tribunal needs to determine is whether, as it is required to do by s.45(1)(e), the landlord met its obligation to the tenant to, “...take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.”
I find that it didn't. The behaviour described in the tenant’s first notification in early May 2024 amounted to anti-social behaviour, which is defined in s.55A(7) as “...(a) harassment or (b) any other act or omission brackets (whether intentional not) if the actor omission reasonably causes alarm, distress, or nuisance that is more than minor.”
I find it proved that there was more than minor nuisance and distress caused by Ms A having a large dog living at Flat 13, which the tenant knew was not permitted. After the notice to remedy was issued requiring that it be removed, no consequential actions were taken by the landlord in response to the continuing breach.
The landlord’s notes record it having been assured by Ms A and Mr B at the meeting on 27 May 2024, that they would be more mindful about how their behaviour impacted on their neighbours. The landlord was then notified that almost immediately afterward, on 29 May, the tenant had again been verbally abused and threatened by Mr. B.
That must have made it obvious to the landlord that there was no reliable substance to the assurances it had been given, and that more was required to protect the interests of this tenant and its other tenants. In my view it would have been reasonable and a reasonable expectation of the tenant, for the landlord to at least exercise its powers under s.55A or 56 to ensure there would be consequences for such continuing anti-social and intimidating behaviour.
No such steps were taken for another six weeks, until 5 July 2024, after the landlord had been provided with confirmation of a police incident report alleging Mr B threatening to kill the tenant. The step taken at that point was only to issue a first anti-social behaviour notice. Under s.55(1)(c) a proven threat of assault, let alone a threat to kill, requires the Tribunal to terminate a tenancy.
The tenant’s sense of vulnerability was compounded because it was not until the mediation of this application, that he was given any of the information he had requested about the steps the landlord had taken in response to the concerns he had raised. His position is that he had not expected or asked for details that would breach Ms A’s privacy, but he was entitled to know about the process and procedure that would be followed in response to his complaints, which he says would have been immensely reassuring to him, by letting him know his concerns were taken seriously and were being acted upon.
For the reasons given, in relation to the disturbance from the dog at Flat 13 and in relation to the threatening, abusive and disturbing behaviour experienced by the tenant in particular from Mr B, occupying Flat 13 with Ms A’s consent, I find that the landlord did not take all reasonable steps available to it to protect the tenant’s peace comfort and privacy in his occupation of the premises.

What remedy is appropriate?

The landlord says that the period from when the tenant’s first concern was raised to the date the tenancy at Flat 13 was ended, was approximately 3 months. The evidence shows that the landlord did not entirely ignore the tenant’s concerns and did make attempts to engage with Ms A. Ultimately, an appropriate outcome was achieved.
It would have been reasonable for the landlord to have sought consequences for Ms A’s failure to comply with the s.56 notice to remedy in respect of the dog. It would have been reasonable for the landlord to have exercised its power under section 55A to issue anti-social behaviour notices when made aware of the ongoing anti-social behaviour by Mr B. It would have been reasonable for the landlord to seek termination under s.55(1)(c) for the threats made against the tenant. Those thing did not happen.
In terms of the compensation claimed, the landlord is not responsible for the conduct of Mr B or Ms A. Its responsibility is to take all reasonable steps available to it, to protect the tenant’s peace, privacy and comfort from that conduct.
Had the landlord taken the reasonable and available steps identified above, there is no certainty those steps would have resulted in a moderation of Mr B’s behaviour. There is no certainty about whether or when the Tribunal might have made an order terminating Ms A’s tenancy. That result was achieved by the landlord negotiating Ms A’s relocation.
There is therefore no certainty that the tenant would have felt able to reoccupy the premises or use it for work purposes, any earlier.
For those reasons, I do not find it proved that the losses claimed by the tenant for his inability to use the premises as his home or to see his clients, were caused by the landlord’s breach – they were caused primarily by the behaviour of Mr B, which is not the landlord’s direct responsibility.
I do find however that by the landlord failing in its legal responsibility to take reasonable and available steps to protect the tenant’s interests, the tenant is entitled to feel aggrieved that the interests of one of the landlord’s other tenants have been prioritised over his, to his detriment.
The landlord says that it would have been unfair to Ms A to take steps that might lead to the loss of her tenancy, principally through the actions of Mr B, of whose behaviour Ms A was herself a victim. That is an understandable concern, but: a. in terms of te RTA, Ms A is legally responsible for Mr B’s actions; b. the evidence shows that throughout, Mr B was there with her consent; c. there is no evidence that the “lenient” approach taken by the landlord towards Ms A’s responsibilities, at the cost of this tenant’s right to peace privacy and comfort, promoted Ms A’s safety.
The landlords’ breach has had significant implications for the tenant, through the stress, inconvenience, discomfort and frustration associated with his attempts to have his concerns acted upon, which should be recognised by an award of general damages.
As the tenant has succeeded with a claim, I reimburse the filing fee.

Tenancy Tribunal case 4980448 — Property damage at Unit/Flat 14, 7 Bayard Street, Ponsonby, Auckland 1011

At a glance

Tenancy Tribunal case 4980448 — Property damage at Unit/Flat 14, 7 Bayard Street, Ponsonby, Auckland 1011

At a glance

Award balance

Claims & awards

Order

Reasons

What remedy is appropriate?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

What remedy is appropriate?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions