What was Tenancy Tribunal case 5050092 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5050092?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5050092?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5050092?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11092109-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5050092 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5050092?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5050092?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5050092?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11092109-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5050092 — Harassment

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Oxygen Limited (Anna Crawford) For Tracey And Nigel Tiswell must pay [The tenant/s] $27.00 immediately, being the filing fee on this application.
It is ordered by way of declaration that the anti-social behaviour notice issued to the tenant by the landlord under s.55A(2)(b) RTA dated 18 July 2024 (“first notice”) was valid and effective.
It is ordered by way of declaration that the anti-social behaviour notice issued to the tenant by the landlord under s.55A(2)(b) RTA dated 29 August 2024 (“second notice”) was invalid and is set aside.
It is ordered by way of declaration that the landlord was in breach of the tenancy agreement by requiring inspections of the premises more frequently than every six months.

Reasons

Both parties attended the hearing. The tenant was supported and represented by her partner. Background
This application is a further symptom of an ongoing dispute between the tenant and the occupiers of 2 neighbouring properties.
The first neighbour, (“Mr A”) is a tenant under a tenancy managed by the landlord. Those premises are owned by different owners and the tenancy is managed by a different property manager. The other neighbours (“Mr and Mrs B”) are owner occupiers.
There have been ongoing issues between these neighbours over many years involving altercations, abusive behaviour, police attendances, police warnings, trespass notices, mutual camera surveillance, mud slinging (literally) and other unpleasantries. Mr B has been issued a police warning for assault in the tenant with a weapon.
A letter from Police dated 6 December 2024 notes their attempts to assist the parties to a functional relationship and their exasperation at the waste of their time responding to frivolous complaints.
The landlord took over management of this tenancy in November 2022. It inherited that difficult dynamic and rightly felt it had a responsibility to manage the tenancies it was responsible for, in a way that might mitigate the ongoing conflict. It has a responsibility to do so under s.45(1)(e), which requires that the landlord, “.....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.”
The landlord of course has no ability to manage Mr and Mrs B’s occupancy of the home they own. The Notices
Around 18 July 2024, Mr and Mrs B contacted the landlord and provided video footage which appeared to show the tenant engaging in anti-social behaviour towards Mr B on the shared driveway. That footage was provided in evidence.
On the basis of that footage, the landlord issued the tenant with the first notice. The notice alleges, “intimidating neighbour, verbally abusing neighbours, theft of neighbours bucket/ shovel”. The notice also records, “There have been multiple complaints over the time of your tenancy, it has now come to a point I need to advise you that this behaviour needs to stop and is unacceptable”._
On 28 August 2024, property manager manging Mr A’s tenancy received a phone message alleging anti-social behaviour by the tenant. A recording of that phone message was provided in evidence. The second anti-social behaviour notice was issued on the basis of that complaint. It alleges, “...an altercation with a neighbour, verbally abusing the neighbour.”
The tenant then brought this application claiming that those notices were invalidly issued and asks that they be set aside. Analysis
Each of the notices must be considered against the criteria in section 55A RTA.
Where, as here, a tenant challenges the validity of an anti-social behaviour notice, under s.55A(6), “...it is for the landlord to prove that anti-social behaviour was engaged in as described in subsection (2)(a) and that the notice met the requirements of subsection (2)(b).”
I am satisfied that each of the notices meets the requirements of section 55A(2)(b), which sets the information such notices must contain.
It is then a question of whether the landlord has proved that the tenant engaged in anti-social behaviour as alleged. In s.55A(7), such behaviour is defined as, “(a) harassment; or (b) any other act or omission (whether intentional or not), if the act or omission reasonably causes alarm, distress, or nuisance that is more than minor.” First Notice
The video evidence provided, shows the tenant confronting Mr B on the driveway outside her home while filming him with her hone. He is sweeping up what I am told is bird seed that the tenant likes to use to attract birds but which Mr B objects to, because it is picked up by the tyres of his car and taken into the internal garage.
During the confrontation Mr B throws the dustpan full of swept up seed over the fence into the tenant’s yard.
Mr B does not look particularly perturbed by the tenant confronting him and exhibits his own signs of aggression. It is difficult to hear what he is saying as he's facing away from the camera but his body language is aggressive and at times threatening – raising the broom toward the tenant.
The footage shows that the tenant’s partner comes to support her and attempts to get her to disengage but on several occasions the tenant quote pursues further confrontation with Mr B. She removes Mr B’s dustpan and brush refusing to return it.
The tenant is abusive of Mr B, calling him a “paedo” and other insulting names.
The tenant’s partner gave evidence that the video, taken from around the corner by Mrs B, follows deliberate provocation Mr B, who was shortly before seen on the concrete pad immediately outside the tenant’s flat, which is her property not joint property and within the area identified in the trespass notice issued against Mr. B by the police. A copy of the trespass notice is provided in evidence.
Having heard the tenant’s evidence I think it more likely than not that Mr B himself had engaged in anti-social behaviour preceding and during the incident shown in the video footage. I say that, mindful that I have not heard from Mr B in his defence.
The context in which the video was taken and sent to the landlord and the events described by the tenants leading up to it, suggests a high possibility that the incident may have been “staged” by Mr and Mrs B to obtain the video evidence used to support their complaint to the landlord.
Even if that is true, the video evidence persuades me that the tenant herself engaged in anti-social behaviour as defined in s.55A(7). The evidence does not show harassment but it does show behaviour causing “...alarm, distress, or nuisance that is more than minor.”
In my view it cannot be correct to say that a person has not behaved anti- socially because the other party is also behaving in an anti-social or provocative manner.
Those factors will be relevant to the Tribunal in determining whether to terminate a tenancy for anti-social behaviour. Section 55A(3) RTA provides that the Tribunal must not make an Order terminating a tenancy for anti-social behaviour, “...if satisfied that - doing so would be unfair because of the circumstances in which the behaviour occurred or the notices were given.”
However, whether a tenant has engaged in anti-social behaviour and whether the tenancy should be terminated for that behaviour, are separate questions.
I have considered whether, in the context of this dispute, it could be said that Mr B was not, subjectively, alarmed, distressed or caused nuisance by the tenant’s conduct. That is not a finding I can fairly make. It does seem clear from the footage that tenant’s behaviour was intended to have that effect. As noted, the tenant’s continuation of the confrontation, despite her partner’s attempts to have her disengage, is evidence of that.
For those reasons I find it proved on the balance of probabilities that the tenant did engage in anti-social behaviour as described in the first notice. The first notice was therefore validly issued. Second Notice
The second notice alleges, “....an altercation with a neighbour, verbally abusing the neighbour.”
The landlord played a recording of the voice message left my Mr A for his property manager which complains about the speed at which the tenant drove down the shared driveway. It makes no reference to an altercation or verbal abuse by the tenant.
The tenant played CCTV footage showing her driving down the shared driveway (at, in my view, an unsafe speed) passing Mr A who shouts abuse at her for the speed at which she is driving. That incident was recorded to the tenant’s phone from CCTV on 8 August 2024 so cannot have been the incident on 28 August 2024 referred to in the second notice.
The evidence does not provide proof of the anti-social behaviour alleged in the second notice, which is set aside.
A particular grievance of the tenant is that the notices were issued without any prior dialogue with her, giving her a chance to tell her side of the story before the notices were issued. From her perspective, that suggests that her property manager has immediately taken the side of the neighbours in the dispute.
For the landlords part, the property manager says that there was no such intention but that it has not been possible to have open dialogue with the tenant because, for privacy reasons, the tenant has declined to provide her with a mobile number, preferring all communications to be by e-mail so they are on record.
The parties have sensibly agreed that the tenant will provide the property manager with her phone number on the basis that the property manager will communicate with her by txt, unless otherwise requested by the tenant. Inspections
When the landlord took over management of the tenancy, the owners expressed a preference that inspections be carried out four monthly even though they had themselves inspected less frequently. The tenant objected, saying that the agreement provided for inspections no more frequently than every six months.
The landlord continued with more frequent inspections until the tenant pointed out the specific provision in the tenancy agreement specifying a six monthly inspection period. After that, the landlord agreed that the inspections should be 6 monthly.
That is the appropriate position to take. The landlord and the owners are bound by that provision of the parties’ agreement and cannot unilaterally change it.
The tenant seeks that confirmation but withdraws her claim for compensation that exemplary damages for the additional inspections that were carried out in breach of the agreement.
As the tenant has had claims upheld, I reimburse the filing fee.

Tenancy Tribunal case 5050092 — Harassment

At a glance

Tenancy Tribunal case 5050092 — Harassment

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions