What was the outcome of Tenancy Tribunal case 5080856?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5080856?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5080856?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5080856?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11671183-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5080856?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5080856?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5080856?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5080856?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11671183-Tribunal_Order.pdf.

Unit/Flat 202, 115 Oreil Avenue, West Harbour, Auckland Tenancy Tribunal Case 5080856 — 14-day notice

Order

The application is dismissed.

Reasons

Both parties attended the hearing on 14 March 2025.
The tenant claims the landlord has breached their obligations under section 45(1)(e) of the Residential Tenancies Act 1986 (RTA).
As the applicant, the tenant must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Katipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit of not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence at the hearing). I must weigh this evidence to decide what is more likely. DID THE LANDLORD BREACH SECTION 45(1)(e)? The law
Section 45(1)(e) RTA states: A landlord shall 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. Tenant’s evidence and submissions
The tenancy address is a multi-unit dwelling consisting of 15 relatively small apartments.
The landlord is a social housing provider. Each apartment is occupied by a tenant of the landlord.
The tenant moved into the property with her daughter on 6 December 2022. The tenant claims that their peace and comfort has been disturbed by neighbouring tenants since the day they moved in. The tenant claims that they have endured loud music, loud voices, banging and drug use from other tenants. In particular, the tenant claims they have experienced ongoing issue with their immediate neighbours on either side of their apartment (“Chris” and “Connie”) and another neighbour who lives directly below them (“Graham”).
The tenant gave evidence that Chris plays his music very loudly, including early in the morning around 5:30am – 8:00am and late at night after 10:00pm. The tenant gave further evidence that Chris smokes marijuana and methamphetamine. The tenant claims the fumes drift past their apartment and into their home when the window or door is open. The tenant and her daughter have asthma and the tenant states that the fumes are not good for their health.
The tenant also gave evidence that Connie and Chris are very loud and always fighting. The tenant gave evidence that they shout at each other, bang around their apartments and slam doors loudly. The tenant gave further evidence that Graham often visits Connie and tends to bang loudly on her door or shout when he visits.
The tenant claims that her and her daughter have not had a good night’s sleep since they moved into the apartment. The tenant gave evidence that her daughter is very tired and the lack of sleep is affecting her schooling. Oranga Tamariki are involved with the tenant and her daughter, and the tenant submitted a letter from them where they expressed concerns regarding the environment the tenant and her daughter are living in. The letter relevantly states: ...The housing the whanau live in is a complex with tenants who come under mental health which has brought much stress for [tenant] raising her daughter. Oceania is the only Tamariki in the building. There have been many police call outs due to criminal activity and disruptions which keep both [the tenant] and [their daughter] up at night which one of the barriers for [the tenant’s daughter] attending school as she has been kept up at night. ...
The tenant claims that they have called noise control on multiple occasions, but the attending officer only sits in their car on the street to listen for the noise. The tenant gave evidence that the music cannot be heard from the street, which is why nothing is ever done when noise control visits.
The tenant submitted a letter from another tenant in the complex known as “Conrad.” In this letter, Conrad states: I am writing in concern about another two tenants that have caused a lot of trouble and nasty volatile thing that have caused me then. One problem not just with me but also with Jennifer and her daughter as well as sending death threats and we have to deal not only with Chris but also Connie from apartment 201 as she brings men around use them and then starts to fight them once she gotten what she wants out of them. This has to stop as for 3 years we have all tried with both of them...
The tenant also called their friend, Colin Visser, as a witness. Mr Visser has known the tenant for approximately two and a half years. He assists the tenant with grocery shopping once per week.
Mr Visser gave evidence that he has noticed loud music coming from the upper level of the apartment complex when he has helped the tenant to take groceries to her apartment. He gave further evidence that he has also noticed a smell of what he believes to be marijuana.
Mr Visser claims that he has been able to hear loud music in the background when the tenant has called him on the phone at times complaining about the noise.
On 14 February 2025 the tenant claims they were assaulted by their neighbour Chris. The tenant gave evidence that Chris was playing his music loudly and the tenant called noise control who asked Chris to turn his music down. The tenant gave evidence that this upset Chris who said something like “bloody [tenant’s name].”
When noise control arrived, the tenant was fetching a piece of wood from another tenant at a different apartment. The tenant claims they had fostered a cat and were fetching a piece of wood to cover up a hole in their balcony to prevent the cat from falling. The tenant gave evidence that they were walking up the stairs to their apartment on their way back from fetching the wood. The tenant states Chris was annoyed at them and confronted them at the top of the stairs asking “what the fuck do you want that wood for?” The tenant claims they did not reply and Chris pushed them with his shoulder and stomach causing the tenant to fall back. The tenant claims they put the piece of wood down and Chris then kicked it away. The tenant instructed her daughter to call the Police, which she did.
The tenant submitted a copy of the Police Acknowledgement Form. It is not known whether the Police have made any decision to charge Chris.
The tenant claims that they have raised their concerns with the landlord on numerous occasions, but nothing has been done.
The tenant submitted 78 pages of various text messages between themselves and their property manager, “Carol”. The majority of these text messages are irrelevant and the tenant did not refer to any particular text message in their evidence. From a general perusal of the text messages, one is able to see that the tenant has raised issues such as loud music, yelling and marijuana consumption by other tenants at the property with their property manager on occasion. Landlord’s evidence and submissions
The landlord acknowledged that they had received complaints by the tenant about loud music, yelling and marijuana consumption during the tenancy.
The landlord gave evidence that they have investigated these complaints by speaking with other tenants at the complex however, no other tenants have said that they have heard excessive music or yelling coming from Chris, Connie and Graham’s apartments.
The landlord submitted copies of the callouts from noise control. These records show that there have been 12 complaints to noise control and none have resulted in an outcome of excessive noise.
The landlord gave evidence that they have spoken with Chris, Connie and Graham about the need to be considerate of neighbours, particularly when living in close proximity.
The landlord accepts that they have not taken any formal measures to issue Chris, Connie or Graham with a notice for breach of their tenant obligations under section 40(2) RTA. The landlord states this is because they do not believe they have had sufficient evidence to do this.
The landlord claims they have made an offer to transfer the tenant to another house, which the tenant declined. The landlord states the offer to transfer was to a townhouse, which they believed might better suit the tenant as it is lower density housing.
The landlord gave evidence that they investigated the incident that occurred on 14 February 2025 between Chris and the tenant. They met with the tenant to obtain their version of events. The landlord also spoke with Chris and the attending noise control officer. The landlord claims that Chris admitted to turning his music down when noise control arrived but denied assaulting the tenant. The landlord gave evidence that the noise control officer was unable to confirm whether Chris assaulted the tenant or not and there were no other witnesses. In all the circumstances, the landlord concluded that they did not have sufficient evidence to conclude that an assault had occurred and therefore, they did not apply to the Tribunal for a termination order under section 55(1)(c) RTA, but instead issued Chris with a formal notice for anti-social behaviour under section 55A(2)(b) RTA.
The landlord claims they have taken all reasonable steps in the circumstances to ensure that the behaviour of Chris, Connie and Graham does not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. Analysis
The tenant bears the onus of proving on the balance of probabilities that their peace, comfort or privacy has been unreasonably interfered with by other tenants and the landlord has failed to take reasonable steps to address this. I do not consider the tenant has done this.
The letter submitted by the tenant from Conrad is short, vague and makes no mention of excessive music, noise or drug use. The tenant did not call Conrad as a witness to give evidence in support of his letter, nor did the tenant call any other tenant from the complex to give evidence supporting the tenant’s claims.
None of the 12 callouts from noise control have resulted in an outcome of excessive noise. The tenant submitted copies of Police reports, but these are so heavily redacted the Tribunal is unable to determine what occurred and the parties’ involved.
I accept the landlord’s submission that they need to be careful to ensure that they have sufficient evidence when issuing a tenant with a notice for a breach of section 40(2) RTA. This is because every tenant has a right to quiet enjoyment of their property. This right allows tenants to engage in activities such as playing music or entertaining guests. A landlord who too readily issues a tenant a notice for breaching section 40(2) RTA risks being found liable of interfering with that tenant’s right to quiet enjoyment if the landlord has insufficient evidence to support the breach notice.
In this case, the landlord has spoken with Connie, Chris and Graham about the need to be courteous when living in close proximity to other the people. The landlord has also offered to transfer the tenant to a new house, which the tenant declined. Regarding the most recent incident on 14 February 2025, the landlord has issued Chris with a formal notice for engaging in anti-social behaviour. In these circumstances and with the limited evidence available to them, it cannot be said that the landlord has acted unreasonably to protect the peace, comfort and privacy of the tenant.
If the tenant continues to experience instances of loud music and noise, it might be helpful to them to take a recording to send to the landlord to prove the level of noise and time of day or night it is made. Similarly, statements from neighbouring tenants corroborating the complaints of the tenant might assist, as well as photographic evidence of neighbouring tenants engaging in illegal activity at the tenancy address.
In the absence of this kind of additional evidence however, the tenant has not proven their claim and it is dismissed.

SUPPRESSION

The tenant’s written application included a request for name suppression. The tenant has not been wholly or substantially successful in their claim and therefore, I am not required to grant them name suppression under section 95A(1) RTA.
I have a residual discretion to grant the tenant name suppression under section 95A(3) RTA. This section requires me to consider the interests of the parties and public. In Lewis v Wilson & Horton [2003] 3 NZLR 546 at paragraph 43, The Court of Appeal endorsed the approach taken in the High Court, which held: ...that the principle of open justice dictates that there should be no restriction on publication of information about a case ‘except in very special circumstances.’
The tenant did not advance their application for name suppression at the hearing. I was not referred to any special circumstances why name suppression should be granted and none are apparent from the facts of this case.
I have considered the interests of the parties and the public interest. I do not consider that this is an appropriate case to grant name suppression.

Tenancy Tribunal case 5080856 — 14-day notice at Unit/Flat 202, 115 Oreil Avenue, West Harbour, Auckland

At a glance

Tenancy Tribunal case 5080856 — 14-day notice at Unit/Flat 202, 115 Oreil Avenue, West Harbour, Auckland

At a glance

Claims & awards

Order

Reasons

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions