What was Tenancy Tribunal case 5067096 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5067096?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5067096?

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

Where can I read the official tribunal order for case 5067096?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11164684-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5067096 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5067096?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5067096?

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

Where can I read the official tribunal order for case 5067096?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11164684-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5067096 — 14-day notice

Tenantcheck Insights

Reasons

Both parties attended the hearing.

The landlord has applied for termination of the tenancy on the grounds that (i) the tenant threatened to assault a neighbour/s and (ii) assaulted an agent of the landlord. The agent was a process server who was delivering a document from the landlord to the tenant. The Residential Tenancies Act 1986 provision

The landlord has made submissions in support of the application to terminate the tenancy under section 55(1)(c) Residential Tenancies Act 1986 (RTA) which provides that: “Subject to subsection (2), on any application made to it under this section by the landlord, the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that – the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, any of the following persons: (i)the landlord or any member of the landlord’s family: (ii)the owner of the premises or any member of the owner’s family: (iii)any agent of the landlord: (iv)any occupier of any building of which the premises constitute a part: (v)any neighbour of the premises or of any building of which the premises constitutes a part.” The alleged threat of assault against the neighbour

The landlord has claimed that on one occasion the tenant threatened to assault the neighbour. It is alleged that he called out to the next door neighbours that he would burn their house down. The neighbour who heard this was in the sleepout with the door and windows closed. The threat is alleged to have happened after a [redacted] Council Animal Control officer had been to the tenant’s property. It was said that the tenant assumed the neighbours had complained. The tenant denies that he called out to the neighbour using those threatening words. He stated that another neighbour about two doors down, with mental health issues, is constantly calling out and that is what the neighbour may have heard.

The allegations of a threat of assault and assault are very serious. The more serious the allegation, the stronger the evidence needs to be before the Tribunal concludes that the allegation is established on the balance of probability. In the present case the applicant’s claim relies on a neighbour’s recollection of what he heard a person in another house say or shout when sitting in his own house. There was no independent witness that could confirm the neighbour’s recollection. There is no history of repeated threats to the neighbour that the Tribunal is aware of. A history of threats might assist with the proof of this allegation. I have no doubt that the tenants were unsettled by an event that happened however there is insufficient evidence for me to make a finding that the tenant made a threat to burn their neighbour’s house down.

This finding does not mean that the threat was not made. It is a finding that there is insufficient evidence to prove the claim to the standard required for such a serious allegation. The alleged assault against the agent process server.

The alleged assault against the landlord’s agent was when the landlord’s process server attended at the property. The agent’s account was that the tenant was on the property but did not want to take the documents from him. He left the documents in the tenant’s car. The tenant followed him and put his face against the agent’s face. The agent put his arm out to move the tenant away from his face. The tenant put his face to the agent’s face again and was pushed back again. The agent took his phone from his back pocket to call 111. The tenant struck his arm, knocking the phone to the ground.

The tenant denies the agent’s recollection of events. The tenant states that he asked the agent to get off his property and post the documents or put them in the letterbox. The agent ignored his request and put the documents in the tenant’s vehicle that had a back door open. The tenant was annoyed at this action and followed the agent off the property to the agent’s car parked on the street. The tenant said that he followed the agent to his car get the vehicle licence plate number. He intended making a complaint. The tenant said that when he arrived at the agent’s car the agent approached him and pushed him and then raised the phone to hit the tenant. The tenant said that he protected himself from a blow and the phone fell out of the process server’s hand to the ground.

Unlike the previous allegation, many of the facts are agreed. There is no dispute that the process server was not welcome on the tenant’s property, left the document he was serving in the tenant’s vehicle, that the tenant was annoyed and followed the server to his car. There is no dispute that there was an incident by the car where the server’s arm came in contact with the tenant’s arm and the agent’s phone was knocked to the ground. The phone was undamaged.

The tenant would have me believe that the process server was about to use his phone for an assault. I find that most unlikely. The process server would have me believe that the tenants actions caused him to attempt use his phone for help. I find that much more believable. The tenant would have me believe that the process server turned on him as he approached and attacked him. I find that less likely than the tenant engaging with the process server because he was annoyed that the process server had not listened to him about where he left the document.

Although there was no independent witness in this case, there are sufficient undisputed facts that the determination required is only about the likely cause of the server’s phone ending on the ground. I find the balance of probability to be that the tenant did strike the landlord’s agent. The allegation of an assault is proved.

Should the Tribunal refuse to terminate the tenancy?

Section 55(1)(c) requires the Tribunal to terminate a tenancy if it is proved that the tenant either assaulted or a threatened to assault. However, the Tribunal must also consider section 55(2) in making its decision. Section 55(2) sets out two conditions where the Tribunal may refuse to terminate. “The Tribunal may refuse to make an order under subsection (1) if, but only if, it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies”

The first condition where the Tribunal may refuse to terminate is where a breach is capable of remedy and has been remedied. However this condition is not relevant to the current case because assault and a threat to assault are not capable of remedy.

The second condition where a Tribunal may refuse to terminate is where it is unlikely that the tenant will commit any further breach of the kind to which this section applies. I must therefore consider whether the tenant is likely to carry out further assaults.

In considering this section I have taken into account the reason why the tenant became physically involved with the landlord’s agent. I am satisfied that the tenant was irritated with the landlord regarding his housing situation prior to the agent arriving. He was further irritated by the presence of a process server on his property when the reason for the agent’s presence was identified. The tenant refused to accept the document that the agent wanted him to take. The agent recalls being told to leave the property and post the document. He does not recall the tenant telling him to leave the document in the letterbox. My view is that the situation escalated because the agent chose to put the document in the tenant’s vehicle. This was viewed by the tenant as the agent exercising his authority in an unnecessary and confrontational way. The tenant’s irritation increased, and he became unnecessarily and unacceptably confrontational with the agent.

It is most likely that the confrontation would not have happened if the agent had not left the document in the tenant’s vehicle. The agent said in his statement that he knew what the tenant was like. He knew the tenant could become irritated. I believe that the confrontation could have been avoided if the agent left the property putting the document in the letterbox as he left.

The incident points to a tenant that is easily provoked. The tenant failed to exercise control. That could suggest that it is likely that the tenant will cause a further breach. However the breach came about by a specific event that need not be repeated. The event was also partly caused by the agent’s unnecessary action of putting an unwanted document in the tenant’s car. I have not been made aware of any other assaults on the landlord or agents of the landlord by this tenant.

I have also considered the proportionality of the incident. Is it reasonable to end a person’s tenancy because a mobile phone was knocked out of someone’s hand?

Having considered the facts of the case I have refused to terminate the tenancy on the grounds that there it is unlikely that the tenant will commit a similar breach against the landlord or the landlord’s agent.

Should the tenancy be terminated under section 56 of the RTA?

The landlord has applied for termination under section 56 of the RTA. The landlord’s submission is that the tenant has breached his tenancy agreement and section 40(2)(c) of the RTA in that he has breached the reasonable peace and comfort of the landlord’s other tenants. The submission is referring to the threat to burn the house down.

I have already determined that it has not been proved that tenant threatened to burn the neighbour’s house down.

In regard to the assault of the agent, section 56(1)(c) provides that the Tribunal may refuse to order termination under section 56 if the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy. I have determined that the nature and extent of the assault warrants the Tribunals’ refusal to order termination. Name Suppression

Because the tenant has substantially succeeded in defending the claim, name suppression is granted. (see Section 95A(4) of the Residential Tenancies Act 1986).

Reasons

Both parties attended the hearing.

Should the Tribunal refuse to terminate the tenancy?

I have also considered the proportionality of the incident. Is it reasonable to end a person’s tenancy because a mobile phone was knocked out of someone’s hand?

Should the tenancy be terminated under section 56 of the RTA?

I have already determined that it has not been proved that tenant threatened to burn the neighbour’s house down.

Because the tenant has substantially succeeded in defending the claim, name suppression is granted. (see Section 95A(4) of the Residential Tenancies Act 1986).

Tenancy Tribunal case 5067096 — 14-day notice

At a glance

Tenancy Tribunal case 5067096 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Should the Tribunal refuse to terminate the tenancy?

Should the tenancy be terminated under section 56 of the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the Tribunal refuse to terminate the tenancy?

Should the tenancy be terminated under section 56 of the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions