What was Tenancy Tribunal case 5079108 about?

The tribunal order states: Because the tenant has successfully defended this application, there is an order

How much money was awarded in case 5079108?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5079108?

The dispute type was not classified.

Where can I read the official tribunal order for case 5079108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11240809-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5079108 about?

The tribunal order states: Because the tenant has successfully defended this application, there is an order

How much money was awarded in case 5079108?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5079108?

The dispute type was not classified.

Where can I read the official tribunal order for case 5079108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11240809-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5079108 — Tenancy dispute

Order

Because the tenant has successfully defended this application, there is an order for non-publication of her name.
The landlord’s application for termination is dismissed.

Reasons

Both parties attended the hearing which was conducted by phone.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The onus is on the landlord to prove the claim. The standard of proof is on the balance of probabilities.

Should the tenancy be terminated?

The landlord had given the tenant a notice advising that they were seeking termination on the following grounds: Damages Section 40(2)(a) intentionally or carelessly damage, or permit any other person to damage, the premises; 55A Termination for anti-social behaviour
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 (the Act).
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.
The first question is whether the tenant has breached an obligation under the tenancy agreement or under the Act.
The alleged breach in this case concerns entering a restricted area. There had been a fire in one block of 10 units and these had been boarded up and cordoned off because they were unsafe. The property manager explained that because of water damage some ceilings had fallen in and others were at risk of doing so. She said that the tenant and others had broken in and removed items, then left the area unsecured, which meant that the landlord had to get contractors in to secure the building again. The landlord is particularly concerned for the safety of anyone entering that block of flats.
The tenant accepted that she had entered the area and removed some pots and pans and an ottoman from the flats. She did not accept that she broke in. She said that someone else had already done that. She believed it was one of the other tenants.
The images provided by the landlord show a woman removing items, but not breaking in.
Under section 40(2) the tenant has certain obligations, including not intentionally damaging the premises. The landlord has not established that the damage was to “the premises” that are the subject of this tenant’s tenancy agreement. Under section 40 “premises” includes “facilities” which is defined in section 2 as facilities which are provided by the landlord for the non- exclusive use and enjoyment of the tenant, and includes areas such as communal laundry facilities, recreational areas, lifts and stairways.
In this instance, the damage was to a separate block of flats which was not part of the tenancy agreement. And in any event, the landlord has not established that the tenant was responsible for any damage.
Section 40(2)(b) provides that the tenant must not use the premises for any unlawful purpose. It appears that the tenant may be guilty of theft of property from another unit, or unlawful entry, but there is no evidence that she has not used her flat or any of the facilities for an unlawful purpose.
Nor has she interfered with the reasonable peace, comfort or privacy of other tenants or residents under section 40(2)(c) because no-one was living in the flats.
Therefore, the landlord has not established that the tenant has breached one of her obligations under the Act, and so I have not considered whether 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.
Even if the conduct were found to be “anti-social behaviour” under section 55A, there is a strict process prescribed under section 55A for termination following three notices for anti-social behaviour.
The tenant’s conduct is clearly undesirable, and it is understandable that the landlord has concerns about continuing the tenancy. I considered whether there were grounds for termination under section 55B which provides that the Tribunal may terminate a tenancy on the ground of hardship, only if satisfied that without the order the landlord would suffer greater hardship than the tenant and because of that hardship, it would be unreasonable to require the landlord to continue with the tenancy. In deciding whether it would be unreasonable to require the landlord to continue with the tenancy, the Tribunal must take into account the impact that terminating the tenancy would have on the tenant.
There is a risk that the tenant either alone or with others may enter the secured area again and that would put the landlord to further expense, but it is not established that it was the tenant who caused the area to be unsecure. Moreover, a termination would have significant impact on the tenant, greater than for the landlord.
I have decided that there are insufficient grounds to terminate the tenancy and the application is dismissed.

Reasons

Both parties attended the hearing which was conducted by phone.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

The onus is on the landlord to prove the claim. The standard of proof is on the balance of probabilities.

Should the tenancy be terminated?

The landlord had given the tenant a notice advising that they were seeking termination on the following grounds: Damages Section 40(2)(a) intentionally or carelessly damage, or permit any other person to damage, the premises; 55A Termination for anti-social behaviour

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 (the Act).

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.

The first question is whether the tenant has breached an obligation under the tenancy agreement or under the Act.

The alleged breach in this case concerns entering a restricted area. There had been a fire in one block of 10 units and these had been boarded up and cordoned off because they were unsafe. The property manager explained that because of water damage some ceilings had fallen in and others were at risk of doing so. She said that the tenant and others had broken in and removed items, then left the area unsecured, which meant that the landlord had to get contractors in to secure the building again. The landlord is particularly concerned for the safety of anyone entering that block of flats.

The tenant accepted that she had entered the area and removed some pots and pans and an ottoman from the flats. She did not accept that she broke in. She said that someone else had already done that. She believed it was one of the other tenants.

The images provided by the landlord show a woman removing items, but not breaking in.

Under section 40(2) the tenant has certain obligations, including not intentionally damaging the premises. The landlord has not established that the damage was to “the premises” that are the subject of this tenant’s tenancy agreement. Under section 40 “premises” includes “facilities” which is defined in section 2 as facilities which are provided by the landlord for the non- exclusive use and enjoyment of the tenant, and includes areas such as communal laundry facilities, recreational areas, lifts and stairways.

In this instance, the damage was to a separate block of flats which was not part of the tenancy agreement. And in any event, the landlord has not established that the tenant was responsible for any damage.

Section 40(2)(b) provides that the tenant must not use the premises for any unlawful purpose. It appears that the tenant may be guilty of theft of property from another unit, or unlawful entry, but there is no evidence that she has not used her flat or any of the facilities for an unlawful purpose.

Nor has she interfered with the reasonable peace, comfort or privacy of other tenants or residents under section 40(2)(c) because no-one was living in the flats.

Therefore, the landlord has not established that the tenant has breached one of her obligations under the Act, and so I have not considered whether 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.

Even if the conduct were found to be “anti-social behaviour” under section 55A, there is a strict process prescribed under section 55A for termination following three notices for anti-social behaviour.

The tenant’s conduct is clearly undesirable, and it is understandable that the landlord has concerns about continuing the tenancy. I considered whether there were grounds for termination under section 55B which provides that the Tribunal may terminate a tenancy on the ground of hardship, only if satisfied that without the order the landlord would suffer greater hardship than the tenant and because of that hardship, it would be unreasonable to require the landlord to continue with the tenancy. In deciding whether it would be unreasonable to require the landlord to continue with the tenancy, the Tribunal must take into account the impact that terminating the tenancy would have on the tenant.

There is a risk that the tenant either alone or with others may enter the secured area again and that would put the landlord to further expense, but it is not established that it was the tenant who caused the area to be unsecure. Moreover, a termination would have significant impact on the tenant, greater than for the landlord.

I have decided that there are insufficient grounds to terminate the tenancy and the application is dismissed.

Tenancy Tribunal case 5079108 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 5079108 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Frequently asked questions