What was the outcome of Tenancy Tribunal case 4993238?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4993238?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4993238?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 4993238?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10907562-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4993238?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4993238?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4993238?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 4993238?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10907562-Tenancy_Tribunal_Order.pdf.

Unit/Flat 11, 20 Bentley Road, Otara, Auckland 2023 Tenancy Tribunal Case 4993238 — 14-day notice

Order

The application is dismissed.

Reasons

Both parties attended the hearing via remote teleconference.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The Applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.

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.
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.
The landlord claims that the tenant has breached their obligations by engaging in anti-social behaviour. The Applicant claimed that the tenant and or people who were permitted at the property by the tenant had acted in an antisocial manner towards other residents in the same complex.
The RTA confirms that antisocial behaviour includes harassment or any act (whether intentional or not) that reasonably causes alarm, distress or nuisance that is more than minor.
The landlord stated in his application that the address is a condensed residential development containing 14 units.
On 2 August 2024 the tenants from units 11 and 3 hosted a party. The party escalated into a violent and serious confrontation involving occupants from units 5 and 6. The escalation resulted in a knife attack, leaving the partner of the tenant from unit 11 with serious injuries. Other tenants have expressed concerns about their safety.
The landlord served 14-day notices on the tenant on 21 August 2024, 26 August 2024 and 2 September 2024. The notices were served on the tenant by email.
The first notice was in respect of the tenant needing to keep noise to a reasonable level.
The second notice related to an alleged breach of the no smoking rules.
The third notice was in respect of a breach relating to ‘dinking and party’.
The Residential Tenancies Act (“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. The landlord was advised during the hearing that he is unable to advance an application under section 55A RTA as the tenant is currently subject to a fixed term tenancy.
The Applicant has not satisfied me that the tenant has failed to remedy the alleged breaches. The landlord has served a number of breach notices on the tenant however has failed to provide evidence that the breaches have not been remedied. I am also not satisfied that the alleged breaches amount to anti-social behaviour. I must put to one side the serious assault which took place and focus on the alleged behaviour which the landlord says is of an anti-social nature.
There is a lack of evidence of what the behaviour was, who did it and when it was alleged to have occurred.
The neighbours may be frightened to come and give evidence against a neighbour, especially when the neighbours are concerned about the behaviour being carried out by gang members or associates of gang members. Unless the Tribunal has evidence directly from the people who saw or heard the antisocial behaviour or has evidence such as photographs or videos which show the antisocial behaviour or Police reports or noise control reports which describe the behaviour, it cannot act simply on what the landlord has been told by neighbours.
When the landlord gives evidence of what they have bene told, but not witnessed themselves it is hearsay. Hearsay evidence is evidence that is not directly seen, heard or spoken by the person that is giving the evidence to the Tribunal.
Whilst the Tribunal can accept hearsay evidence it is always given much less weight than evidence given by the person who was there, that is because the person who was there can answer questions about what they saw or heard and the Adjudicator can make an assessment on the witnesses credibility.
If the tenant’s neighbors are concerned about behaviour, they would be best to contact the police or noise control immediately, who can investigate the behaviour and complaints. Neighbours who then report to landlords need to be specific about the type of behaviour, when it occurred and who did it, and also be aware that the landlord has the burden of proof of proving that the tenant is engaging in any antisocial behaviour, this may mean that the neighbours will be called upon to give evidence or should provide any documentary evidence such as photographs or video recordings to the landlord.
A landlord who is unable to meet the evidential burden will not be able to prove their claim.
Accordingly, the landlord’s application must be dismissed.
The landlord claimed for water arrears. The tenant confirmed during the hearing that this has since been paid. The landlord agreed.
Because the landlord has been unsuccessful in his application I make no order for reimbursement of the filing fee.

Order

The application is dismissed.

Reasons

Both parties attended the hearing via remote teleconference.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The Applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.

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.
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.
The landlord claims that the tenant has breached their obligations by engaging in anti-social behaviour. The Applicant claimed that the tenant and or people who were permitted at the property by the tenant had acted in an antisocial manner towards other residents in the same complex.
The RTA confirms that antisocial behaviour includes harassment or any act (whether intentional or not) that reasonably causes alarm, distress or nuisance that is more than minor.
The landlord stated in his application that the address is a condensed residential development containing 14 units.
On 2 August 2024 the tenants from units 11 and 3 hosted a party. The party escalated into a violent and serious confrontation involving occupants from units 5 and 6. The escalation resulted in a knife attack, leaving the partner of the tenant from unit 11 with serious injuries. Other tenants have expressed concerns about their safety.
The landlord served 14-day notices on the tenant on 21 August 2024, 26 August 2024 and 2 September 2024. The notices were served on the tenant by email.
The first notice was in respect of the tenant needing to keep noise to a reasonable level.
The second notice related to an alleged breach of the no smoking rules.
The third notice was in respect of a breach relating to ‘dinking and party’.
The Residential Tenancies Act (“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. The landlord was advised during the hearing that he is unable to advance an application under section 55A RTA as the tenant is currently subject to a fixed term tenancy.
The Applicant has not satisfied me that the tenant has failed to remedy the alleged breaches. The landlord has served a number of breach notices on the tenant however has failed to provide evidence that the breaches have not been remedied. I am also not satisfied that the alleged breaches amount to anti-social behaviour. I must put to one side the serious assault which took place and focus on the alleged behaviour which the landlord says is of an anti-social nature.
There is a lack of evidence of what the behaviour was, who did it and when it was alleged to have occurred.
The neighbours may be frightened to come and give evidence against a neighbour, especially when the neighbours are concerned about the behaviour being carried out by gang members or associates of gang members. Unless the Tribunal has evidence directly from the people who saw or heard the antisocial behaviour or has evidence such as photographs or videos which show the antisocial behaviour or Police reports or noise control reports which describe the behaviour, it cannot act simply on what the landlord has been told by neighbours.
When the landlord gives evidence of what they have bene told, but not witnessed themselves it is hearsay. Hearsay evidence is evidence that is not directly seen, heard or spoken by the person that is giving the evidence to the Tribunal.
Whilst the Tribunal can accept hearsay evidence it is always given much less weight than evidence given by the person who was there, that is because the person who was there can answer questions about what they saw or heard and the Adjudicator can make an assessment on the witnesses credibility.
If the tenant’s neighbors are concerned about behaviour, they would be best to contact the police or noise control immediately, who can investigate the behaviour and complaints. Neighbours who then report to landlords need to be specific about the type of behaviour, when it occurred and who did it, and also be aware that the landlord has the burden of proof of proving that the tenant is engaging in any antisocial behaviour, this may mean that the neighbours will be called upon to give evidence or should provide any documentary evidence such as photographs or video recordings to the landlord.
A landlord who is unable to meet the evidential burden will not be able to prove their claim.
Accordingly, the landlord’s application must be dismissed.
The landlord claimed for water arrears. The tenant confirmed during the hearing that this has since been paid. The landlord agreed.
Because the landlord has been unsuccessful in his application I make no order for reimbursement of the filing fee.

Tenancy Tribunal case 4993238 — 14-day notice at Unit/Flat 11, 20 Bentley Road, Otara, Auckland 2023

At a glance

Tenancy Tribunal case 4993238 — 14-day notice at Unit/Flat 11, 20 Bentley Road, Otara, Auckland 2023

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