Published tribunal order
Tenancy Tribunal case 5029128 — Tenancy dispute
Decided 20 Nov 2024 · Published 20 Nov 2024 · Application 5029128
- Exemplary damages
- Harassment
- 14-day notice
- Unit Titles
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s name and identifying details.
- The tenancy of Calvin Fairlie at [tenancy address suppressed] is terminated, and possession is granted to [the landlord], at 11:59pm on Wednesday 4 December 2024.
- The Bond Centre is to pay the bond of $336.00 ([Bond number suppressed]) to [the landlord] immediately.
- Calvin Fairlie must pay [the landlord] $441.00 immediately, calculated as shown in the table below:
Reasons
- Both parties attended the hearing. Mr Fairlie was supported by his support worker.
Should the tenancy be terminated?
- The landlord has applied to the Tribunal for an order terminating the periodic tenancy on the grounds of anti-social behaviour from the tenant or someone on the premises with the tenant’s permission.
- The landlord states that there have been numerous incidents of anti-social behaviour by the tenant and his ex-partner in the 4 months leading up to the 5 incidents of anti-social behaviour that have resulted in 14 day breach notices being issued to the tenant.
- The tenant produced a Direction Not to Associate With Stephanie Murphy- Wright from the Department of Corrections dated 9 April 2024. This notice prohibits Mr Fairlie from associating with Ms Murphy-Wright as part of his Court ordered sentence of intensive supervision, until 19 March 2025. The notice states that the reason for this non-association order is to prevent Mr Fairlie from increasing his risk of offending.
- The evidence produced at the hearing today proves that Mr Fairlie and Ms Murphy-Wright have continued to associate with one another, despite this Court Order and that as a result they have continued to have serious and loud arguments, made threats of physical violence against each other and have engaged in some physical violence-based incidents at Mr Fairlie’s place of residence.
- Mr Fairlie’s support worker confirmed that Mr Fairlie has been evicted from his three previous tenancies because of ongoing disruptive and anti-social behaviour between himself and Ms Murphy -Wright at these three premises.
- Mr Fairlie has issued Ms Murphy-Wright with a trespass notice on 6 June 2024, after she continued to come to his home, tailgate other residents to get into his apartment building, forcibly steal his building swipe card and apartment key three times (resulting in the locks needing to be changed) and stab a knife into the apartment door and engage in physical altercations with him.
- The landlord has tried to be supportive of Mr Fairlie and to preserve his tenancy, but because of Ms Murphy-Wright’s ongoing disruptive visits to the apartment building, the landlord has lost a number of social housing apartments in that building and is facing strong opposition from the Body Corporate at retaining any apartments in that building. The landlord has proven that private owners of other apartments have also lost tenants that were too scared to remain renting next to Mr Fairlie because of the number and nature of the incidents of anti-social behaviour he engaged in with Ms Murphy-Wright.
- The landlord has issued five 14-day notices to Mr Fairlie in a 90-day period as follows: a. Notice One: issued on 2 September 2024 for an incident between Ms Murphy-Wright and Mr Fairlie on 26 August 2024 at 5:01am. There was a loud altercation between Ms Murphy-Wright and Mr Fairlie within Mr Fairlie’s apartment that resulted in numerous complaints from other residents on level 10; b. Notice Two: issued on 30 September 2024 for an incident between Ms Murphy-Wright and Mr Fairlie on 27 August 2024 at 5:40am. There was a loud altercation between Ms Murphy-Wright and Mr Fairlie within the apartment building that resulted in numerous complaints from other residents on level 10; c. Notice Three: issued on 30 September 2024 for an incident between Ms Murphy-Wright and Mr Fairlie on 11 September 2024 at 12:03am. There was a loud altercation between Ms Murphy-Wright and Mr Fairlie within Mr Fairlie’s apartment that resulted in numerous complaints from other residents on level 10 and security having to be called to evict Ms Murphy- Wright; d. Notice Four: issued on 30 September 2024 for an incident between Ms Murphy-Wright and Mr Fairlie on 11 September 2024 at 12:13pm. There was a loud altercation between Ms Murphy-Wright and Mr Fairlie where other residents reported them yelling at each other outside the Nelson Street entrance to the apartment building and him hitting her with his jacket; and e. Notice Five: issued on 30 September 2024 for an incident between Ms Murphy-Wright and Mr Fairlie on 18 September 2024 at 6:55pm. There was a loud altercation between Ms Murphy-Wright and Mr Fairlie where other residents reported them yelling at each other outside the lift lobby on level 10 of the apartment building and them hitting each other while continuing yelling and arguing loudly. A number of other residents complained abut this serious altercation to the Building Manager and security was called.
- The landlord held a tenant conference with the tenant after issuing notices one and two and told him that when Ms Murphy-Wright came to the apartment he was not to let her in and was to call the Police to assist him to enforce the non- association and trespass orders. He has not done so and has admitted to continuing to associate with Ms Murphy-Wright, with the last time being 2 weeks ago when he helped her moved from transitional housing to a new tenancy in Dominion Road.
- Mr Fairlie has informed me he is wary of Police and does not want to call them for help, but he continues to have issues with Ms Murphy-Wright that continue to end his tenancies due to the anti-social conduct they appear to engage in when they associate.
- The landlord has audio and visual evidence that shows Mr Fairlie continues to let Ms Murphy-Wright into his apartment and has given oral evidence that the landlord has seen him visiting her on a regular basis at her new tenancy, that the landlord also manages.
- The landlord also stated a few months ago it offered Mr Fairlie a new rental premise out of the CBD so he could move farther away from Ms Murphy-Wright, but he refused that offer.
- Subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied: a. on 3 separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission, engaged in anti-social behaviour in connection with the tenancy; and b. on each occasion the landlord gave the tenant written notice— i. describing clearly which specific behaviour was considered to be anti-social and (if known to the landlord) who engaged in it; and ii. advising the tenant of the date, approximate time, and location of the behaviour; and iii. stating how many other notices (if any) the landlord has given the tenant under this paragraph in connection with the same tenancy and the same 90-day period; and iv. advising the tenant of the tenant’s right to make an application to the Tribunal challenging the notice and; c. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.
- The Act 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.
- I have considered the evidence presented by the parties as set out above.
- I have determined that the landlord has established that anti-social behaviour has occurred on the premises by the tenant or a person on the tenancy with the tenant’s permission. The landlord has served notices on the tenant as required in the Residential Tenancies Act 1986, and the application to the Tribunal was made within 28 days of the date of the third notice.
- I consider it would not be unfair to terminate the tenancy taking into account the circumstances in which the behaviour arose and the notices were given. I cannot see that the landlord has acted in any retaliatory way in bringing this application.
- I cannot consider the impact on the tenant, in making an order for termination of the tenancy.
- The tenancy is terminated and possession granted to the landlord as at 11:59pm on Wednesday 4 December 2024. Should the tenant be held liable for the Building Manager and Body Corporate costs incurred by the landlord as a result of his anti-social conduct?
- [The landlord] claims the it has incurred the following charges from the Body Corporate as a result of the Building Manager being called to attend to the complaints of Mr Fairlie and Ms Murphy-Wright’s altercations outside the apartment block entrance, inside the apartment lobby or inside the tenant’s apartment. It has produce three invoices as follows: a. 25 July 2024 for $628.75; b. 15 August 2024 for $478.75; and c. 2 September 2024 for $345.00.
- The landlord confirmed these monthly charges are for multiple breaches by the tenant of the Body Corporate rules and call outs to the Building Manager and Building Security.
- Call outs to the Building Manager are charged at $150.00 per incident. The landlord says the Body Corporate add to this charge for any breaches of the rules as a deterrent to the landlord for having social housing tenants in the building that are disruptive and engage in anti-social behaviour.
- The landlord choses to have accommodation that requires administration costs and other subsequent charges by a Body Corporate and I consider that some of this cost should be borne by the landlord as part of the cost of the landlord running a social housing organisation. The landlord did say the Body Corporate is trumping up charges to try to get the social housing tenants out of the building.
- However, I do consider the tenant should bear some of the costs the landlord has incurred as a result of anti-social behaviour call outs for his and Ms Murphy- Wright’s disruptive and threatening conduct. I find it fair for Mr Fairlie to pay the $150.00 call out charge for each of the five incidents that led to the anti-social behaviour based 14-day notices issued to him between 2 and 30 September 2024. 5 x $150= a compensatory sum of $750.00 being awarded to the landlord.
Did the tenant use the premise for unlawful purposes?
- [The landlord] claims the tenant has used the apartment for an unlawful purpose, by using methamphetamine in the apartment or allowing a person in the premises with the tenant’s permission to use methamphetamine inside the apartment.
- It is an offence under the Misuse of Drugs Act 1975 for any person to have in their possession or consume any controlled drug and to allow any premises to be used for the commission of an offence under that Act and (sections 7 and 12). “Methamphetamine” is included as a controlled drug under Schedule 1 of the Misuse of Drugs Act.
- A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A Residential Tenancies Act 1986.
- The landlord produced in a pre-tenancy methamphetamine comprehensive test that was carried out by the landlord just prior to the tenant’s tenancy commencing. This test showed a composite result of 0.05μg and a potential maximum in a single sample of 0.27μg.
- After a routine drug dog inspection of the apartment block, the Body Corporate ordered a further methamphetamine composite test on the tenant’s apartment as the drug dog signalled detection of an illegal substance under the tenant’s apartment door. The Body Corporate’s composite drug test showed composite result of 0.44μg and a potential maximum in a single sample of 2.67μg. This second test established the presence of methamphetamine in the apartment of at a level that could be the result of a false positive test even though the result is slightly higher than the pre-tenancy testing established. These tests are composite and the highest single sample is recorded as being 1.14μg.
- Composite tests, even when the results are significantly higher than those in the tenant’s apartment, make it difficult to ascertain whether one or more of the samples tested together are at a level greater than the 15μg/100cm2 level in the Gluckman report. Pg. 28 of the Gluckman report, which looks at composite tests and notes: “Combining multiple samples taken throughout a dwelling into a single composite sample, as permitted in NZS 8510:2017, has limited value and cannot accurately reflect levels of risk, and depending on how the data are integrated can lead to quite misleading interpretation and false impressions of high exposure. This approach of composite analysis is promoted as a cost-effective option for initial screening, but it is in fact costly because it creates a bias towards detecting higher levels, and can falsely impose a requirement for further testing without identifying the areas (nor the actual levels) of potential contamination. Given the low health risk in properties that were not used as meth labs, if they are to be tested, the initial screening should not involve composite field testing that could produce a false positive result – that is, detecting a level of 1.5 μg/100 cm2 (or slightly above) from a composite field sample that adds the readings from all swabs together. Such field composite testing means that every sample can be below the standard, but when combined can raise the overall result, triggering another round of expensive testing”.
- The Gluckman report advises against composite testing on the basis that composite testing can result in a false positive “that is, detecting a level of
- 5ug/100cm 2 (or slightly above) from a composite field sample that adds the readings from all swabs together. Such field composite testing means that every sample can be below the standard, but when combined can raise the overall result, triggering another round of expensive testing.” That is, of course, correct. It would be possible that the 5 discrete swaps taken from the downstairs areas of the rental property would each show readings of
- 16μg/100cm 2 which when added together as a composite would be
- 8μg/100cm 2 and the 5 discrete swaps taken from the upstairs areas of the rental property would each show readings of 2.9μg/100cm 2 which when added together as a composite would be 14.5μg/100cm 2 .
- The Body Corporate took the samples from the tenant’s apartment. I am unsure who took the samples, how many other apartments they tested that day and I have not seen any proof of the chain of custody of the samples. As such, I am not satisfied that the results can be relied upon to prove that the tenant used the premise for an unlawful purpose. The tenant also denies having any drugs in the apartment or allowing anyone else to have drugs in the apartment.
- I find that the methamphetamine results are inconclusive and do not prove on balance that the tenant has used the apartment for the alleged unlawful purpose of possessing or consuming methamphetamine or allowing others to use the apartment to do so.
- This claim is dismissed for lack of sufficient evidence to prove it on balance.’ Reimbursement of filing fee
- Because [the applicant] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- The landlord applies for non-publication of its name and identifying details.
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- The landlord has substantially succeeded in its proceedings. I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.
- Non-publication is ordered.