What was the outcome of Tenancy Tribunal case 5037871?

The tribunal order states: No suppression order applies to the publication of this decision.

How much money was awarded in case 5037871?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5037871?

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

Where can I read the official tribunal order for case 5037871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11081845-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5037871?

The tribunal order states: No suppression order applies to the publication of this decision.

How much money was awarded in case 5037871?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5037871?

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

Where can I read the official tribunal order for case 5037871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11081845-Tenancy_Tribunal_Order.pdf.

2/77 Egmont, Kaponga 4642 Tenancy Tribunal Case 5037871 — 14-day notice

Order

No suppression order applies to the publication of this decision.
The tenancy of Leon John Perry and Lesley Wright at 2/77 Egmont, Kaponga 4642 is terminated, and possession is granted to Matthew & Co. Real Estate Limited, at 11.59pm on Monday 18 November 2024.
Leon John Perry and Lesley Wright must pay Matthew & Co. Real Estate Limited $27.00 immediately to reimburse the filing fee.

Reasons

All parties attended the hearing including both tenants. I heard how Ms Wright is named on the tenancy agreement but how she is Mr Perry’s carer.
The application was originally only made against Mr Perry but as the termination of this tenancy for Mr Perry, if granted, would terminate the tenancy for all tenants in any event, Ms Wright agreed to be added as a party to the application.
The landlord confirmed that the application was to be made in the name of Matthew & Co. Real Estate Limited.
I am satisfied that Matthew & Co. Real Estate Limited is the landlord for the purposes of bringing this application when applying common law agency principles or the extended definition of ‘landlord’ pursuant to section 2(1) of the Residential Tenancies Act 1986 (RTA). This is because the property owner is not identified in anyway on the tenancy agreement. Instead, Matthew & Co. Real Estate Limited themselves are expressed to be the landlord. Further, Matthew & Co undertakes all day-to-day management of this property such as issuing all notices, undertaking all inspections.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations. The landlord says that the Mr Perry has been threatening to the neighbours and has damaged the neighbour’s property.

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 not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone. However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
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. See section 56(1) Residential Tenancies Act 1986.
A tenant must not breach their obligations by cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood section 40(2)(c).
I heard oral evidence from neighbours of the tenants. I will refer to them as S and R. The landlord says they also manage that neighbouring property so S and R are also their tenants and I have no reason to doubt this.
I heard a number of allegations relating to the behaviour of Mr Perry from the landlord but some of these were not supported by oral witness evidence.
However, one of the significant allegations made against Mr Perry was that he had cut the ropes and had slashed the side of S and R’s tunnel house with a knife.
This allegation was supported by witness evidence from both R and S and supported by a number of photographs. The tunnel house is on the boundary fence. I heard how the ropes were cut on the tenants’ side of the fence. I also heard how the neighbours had experienced cuts in the tunnel house for about a year but then in mid-September Mr Perry had been seen and heard by S and R cutting the tunnel house. S had shouted out to him. Both S and R referred to seeing the knife and R referred to Ms Wright knowing the knife that Mr Perry had used. R explained how a tarpaulin had been put over the tunnel house but that there was a slice in that also. S and R sent an email to the landlord the following day setting out the details relating to the event. This was provided to me.
Another allegation made against the tenant was that he had weed sprayed S and R’s plants (herbs, tomatoes and fruit trees) that were in the tunnel house. I heard oral evidence how the tenant had threatened to kill the plants and then heard oral evidence that this was done. This is also referred to as a concern in an email sent to the property manager by R in September. I heard evidence that the neighbours’ view was that a weed sprayer had been put through one of the holes and moved from side to side. The plants had died. I heard from R how the family had eaten plants from the tunnel and that she had been unwell. R was particularly frank in her evidence here, commenting how one tunnel was actually just weeds, so it didn’t matter but how they had eaten food from the other.
Mr Perry says he did spray plants of the neighbour that were marijuana. The neighbour denies this, saying that Mr Perry simply spreads rumours about them and the other neighbours. There is no evidence of any marijuana before me.
While initially denying allegations, with Mr Perry saying for example that he was simply trying to secure the tunnel house as it was flapping, the cuts were due to steel shelving, and how he had not weed sprayed the tunnel house, after hearing the oral evidence from S and R Mr Perry apologised to them both on separate occasions saying he was sorry for everything he had done and offered to assist with payment in relation to the tunnel house and that he regretted doing what he had done.
On the basis of all of the above evidence, I find it more likely than not that Mr Perry caused the alleged damage to the tunnel house and plants.
I also heard from the witnesses that Mr Perry had also made threats to S and R with a bat when their children were present. I heard that while he was addressing his comments to Ms Wright he did so while the neighbours could hear as they were getting into their car: saying that he should beat them with a bat and smack them over the head or knock them out. I heard from R how this occurred in January or February but they just ignored it. I also heard how Mr Perry gives them the finger and calls them names and curses. In their oral evidence Mr Perry’s general behaviour in relation to the cursing and the gesturing was described as rude. S says that other than the tunnel house issue (referred to above) this behaviour had not occurred for a few months now.
I heard evidence that S and R have since obtained a security camera but they are fearful of the Mr Perry retaliating. They have involved the police but they have not been able to do much about it. Mr Perry has also been verbally trespassed by them.
The landlord sent a notice to the tenant warning him about his use of language and using offensive hand gestures in April 2024. A copy was provided to me.
Mr Perry initially denied this but did make some concession saying he was not as bad as was being said. As set out above, after hearing the oral evidence including these issues, he apologised for what he had done and apologised that they had got off to the wrong start and saying that he stays away from their property now and he regrets doing what he has done.
Ms Wright did not give any evidence saying it was a matter between the landlord and Mr Perry.
The oral evidence of R and S was not challenged rather it was met with the above apology and concession. Mr Perry says he will get on with his neighbours if he can.
Based on the above evidence before me I find it more likely than not that these events occurred although the evidence is far from clear about the frequency of the cursing and gesturing.
On the basis of all of the above findings, I am satisfied that the tenant has interfered with the reasonable peace, comfort, or privacy of a person residing in the neighbourhood section 40(2)(c) RTA.
I am not satisfied on the basis of the evidence before me that the incident with the bat amounts to an assault because there is no evidence that the neighbours took such threats seriously, I heard no evidence or submissions on reports being made to the property manager about this. It was not clear what was reported to the police about this. Instead, I heard how the neighbours just ignored it. However, I am satisfied that this, combined with the cursing and gesturing is anti-social behaviour which breaches s 40(2)(c) RTA.
A 14-day notice was given in respect of Mr Perry’s behaviour in April 2024. This is around 6 months before the application was filed. While this may amount to a breach that is incapable of remedy, I would not have terminated on this basis alone because I consider that it would not be equitable to terminate on the basis of this antisocial behaviour, which I heard has since stopped, and such a historic notice.
However, I find that s 40(2)(c) RTA is also breached in relation to the tunnel house and the weeds because physical damage was done to the neighbour’s property. I consider that this is a breach that is incapable of remedy. Mr Perry is verbally trespassed from the neighbour’s property. He has no right to enter into their property to remedy the damage.
I have carefully considered the fact that I heard that S has appeared before the court in relation to an altercation with Mr Perry in October. I heard no evidence or submissions to tell me the outcome of that but see, in a document filed, that in a text message to the landlord S reported that nothing came of it. This incident could not have been the reason why Mr Perry acted the way he did because all of the above incidents took place before that event. While not condoning the actions of S in any way, the subsequent actions of S do not absolve Mr Perry from his own prior actions.
Overall, I find that it would be inequitable to refuse to terminate the tenancy due to the nature of the breach, the damage that has recently been inflicted on the neighbour’s property as well as the history between the parties.
Because Matthew & Co. Real Estate Limited has wholly succeeded with the claim I must reimburse the filing fee.
No request was made for name suppression.

Tenancy Tribunal case 5037871 — 14-day notice at 2/77 Egmont, Kaponga 4642

At a glance

Tenancy Tribunal case 5037871 — 14-day notice at 2/77 Egmont, Kaponga 4642

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