What was Tenancy Tribunal case 5109428 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5109428?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5109428?

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

Where can I read the official tribunal order for case 5109428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11296838-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5109428 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5109428?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5109428?

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

Where can I read the official tribunal order for case 5109428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11296838-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5109428 — 14-day notice

Order

The application is dismissed.

Reasons

The landlord appeared and was assisted by [ Redacted]. The tenant appeared.
The tenancy is periodic and commenced on 14 October 2023 and is current. On 16 December 2024, the landlord filed an application under section 55A of the Residential Tenancies Act 1986 (The “Act”), seeking termination of the tenancy, alleging that the tenant had engaged in anti-social behaviour. Termination for anti-social behaviour
Under section 55A , subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied that on 3 separate occasions within a 90-day period, the tenant, or a person in the premises with the tenant’s permission, has engaged in anti-social behaviour in connection with the tenancy. Notices
The property is in a house which has been made into two separate units. The tenant resides in one unit, the landlord who is in their early nineties and resides alone with support, resides in the other. Both have access to their own defined outdoor spaces. The tenant in his late sixties, also lives alone.
The landlord has produced three notices alleging anti-social behaviour.
The first notice is dated 28 November 2024 and was served on 02 December 2024. The notice refers to text messages allegedly sent by the tenant to the landlord between 21 November 2024 and 28 November 2024, which the landlord considers derogatory and disrespectful toward themselves and neighbours.
The second notice is dated 10 December 2024 and was served on 12 December 2024. It alleges that on or about 09 December 2024 and 10 December 2024, the tenant installed a CCTV camera which is deliberately pointed at the landlord’s property.
The third notice is dated 15 December 2024 and was served on the tenant on 17 December 2024. This notice states that on or about 12 December 2024, the landlord received a letter from the tenant, followed by text messages on 13 December 2024 and 14 December 2024. The landlord claims the letter and text messages contain insulting, and degrading language, and are confrontational and accusatory toward the landlord, their agents, and neighbours.
Each notice was placed in the tenant’s letterbox. Arguments from both parties
The landlord argues that the behaviour described in each notice is anti-social.
The tenant denies engaging in anti-social behaviour and argues that the texts and letter were sent to the landlord expressing concerns about the landlord’s conduct. These include: -Noise at night allegedly made by the landlord banging on internal adjoining wall, -The conduct of the landlord and agents during property inspections, -The conduct of a home handy person and gardener employed by the landlord.
Additionally, the tenant alleges the next-door neighbours are acting in concert with the landlord to interfere with his reasonable peace comfort and privacy.
Regarding the CCTV camera, the tenant states that it was installed following advice of police following incidents of wilful trespass on his property. The tenant states that since installation, such incidents ceased. The tenant denies intentionally aiming the camera at the landlord, claiming while the camera may be visible to the landlord there is no evidence that the landlord is being filmed.
The landlord’s evidence suggests they consider the tenant paranoid and delusional. Meanwhile, the tenant’s evidence suggests a belief that the landlord is cognitively impaired. Both parties have vigorously disputed the facts and the credibility of the other. Law
Section 55A of the Act states: 55A Termination for anti-social behaviour (1) A landlord under a periodic tenancy may apply to the Tribunal for an order terminating the tenancy on the ground of anti-social behaviour. (2) The Tribunal must (subject to subsection (3)) make the order if satisfied that— (a) on 3 separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission (other than the landlord or a person acting on the landlord’s behalf or with the landlord’s authority), engaged in anti- social behaviour in connection with the tenancy; and (b) on each occasion the landlord gave the tenant written notice— (i) describing clearly which specific behaviour was considered to be anti-social and (if known to the landlord) who engaged in it; and (ii) advising the tenant of the date, approximate time, and location of the behaviour; and (iii) stating how many other notices (if any) the landlord has given the tenant under this paragraph in connection with the same tenancy and the same 90-day period; and (iv) advising the tenant of the tenant’s right to make an application to the Tribunal challenging the notice (see sections 77(1) and 78(1)(a) regarding the Tribunal); and (c) the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice. (3) However, the Tribunal must not make the order if satisfied that— (a) doing so would be unfair because of the circumstances in which the behaviour occurred, or the notices were given; or (b) in making the application, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy (unless the Tribunal is satisfied that the purported exercise or the complaint was or would be vexatious or frivolous to such an extent that the landlord was justified in making the application). (4) In deciding whether to make an order under subsection (2), the Tribunal must not take into account the impact that terminating the tenancy would have on the tenant. (5) In subsection (2)(a), if a tenant is in the premises at the same time as another person (other than the landlord or a person acting on the landlord’s behalf or with the landlord’s authority), the tenant is presumed to have permitted the person to be in the premises unless the tenant proves that they took all reasonable steps to prevent the person from entering the premises or to eject the person from the premises. (6) If a tenant makes an application to the Tribunal challenging a notice given under subsection (2)(b), 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). (7) In this section, anti-social behaviour means— (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.]
To succeed with an application for termination for anti-social behaviour each notice must meet the requirements in section 55(b)(i) – (iv). These requirements are conjunctive, meaning that all must be satisfied for the notice to be valid.
Each notice must “clearly describe” the behaviour that meets the definition of anti- social behaviour. If the allegation involves the use of derogatory language the landlord should reference specific words alleged to have been used. If the allegation involves acts believed to be anti-social, they should be detailed as they occurred.
Unless specifically set out in the notice itself or provided with the notice when served, any additional evidence concerning the alleged conduct is irrelevant. A landlord who sanitises notices to avoid offence runs the risk of failing to describe the behaviour in a manner that can be objectively assessed as anti-social.
Evidence that is not included in or does not otherwise form part of the notice will however be relevant when determining whether, under section 55A (3) of the Act, it would be unfair to make an order.
As parties to a tenancy agreement, landlords and tenants are entitled to raise issues with each other concerning the performance of the agreement. Both parties have rights and obligations under the Act, which provides mechanisms, such as 14-day notices, that allow one party to draw the other's attention to alleged breaches.
Section 38(1) of the Act states that tenants have the right to reasonable peace, comfort, and privacy in the use of the premises. A landlord must not cause or permit interference with these rights.
Under section 39(3), any interference caused or permitted by the landlord that amounts to harassment is considered an unlawful act, for which exemplary damages may be awarded.
The term “harassment” is not defined in the Act. However, in the case of MacDonald v Dodds CIV-2009-019-001524, DC Hamilton, 26 February 2010, the Court, in the context of section 38(3), preferred the dictionary definition of harassment over that provided in the Harassment Act 1997. The Court adopted the Oxford English Dictionary definition, which defines harassment as “to trouble, worry, or distress” or “to wear out, tire, or exhaust.”
A landlord who seeks to exercise their rights outside the provisions of the Act risks being found to have acted in a manner that interfered with the tenant’s reasonable peace, comfort, and privacy.
Even when a landlord enforces their rights in accordance with the Act (e.g., by serving notices) they may still do so in a way that constitutes an interference.
Whether interference has occurred will depend on the proven facts and an objective assessment of whether the act in question exceeds what a tenant could reasonably be expected to endure under the circumstances.
In the case of Smith and Floris, Auckland TT 1404/93 (9 March 1994), the Tribunal stated: Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that, however, one must bear in mind that landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for breach of this type.
Under section 40(2)(c) of the Act, a tenant, or others on the property with the tenant’s permission must not interfere with the reasonable peace, comfort, and privacy of the landlord’s other tenants or their neighbours. Under section 40(3A) (d), any such interference that amounts to harassment is considered an unlawful act.
Before the insertion of section 55A by the Residential Tenancies Amendment Act 2021, there were no provisions in the Act allowing a landlord to complain that a tenant had interfered with their own peace, comfort, and privacy, or that the tenant had harassed them. Decision
It is clear from the material produced by the landlord, which includes the letter referred to in the third notice, and the full text messages referred to in the first and third notices, that the tenant is complaining about what they believe to be an interference with their reasonable peace, comfort, and privacy amounting to harassment by the landlord and neighbours.
The correspondence arises within the context of a dispute arising out of the tenancy agreement.
Should the Tribunal be satisfied that the notices do, in fact, disclose anti-social behaviour, there remains a question as to whether under section 55A (6) it would be unfair to terminate the tenancy.
Neither party has issued any 14-day notices.
There is however a more significant issue concerning the validity of the notices themselves. Despite using a form suggested by Tenancy Services, the first notice dated 28 November 2024 does not include a statement advising the tenant of their right to make an application to the Tribunal. On that basis the third notice is defective.
The landlord submits that the notice should nevertheless be accepted, submitting that the omission was unintentional, that the advice had been provided in the subsequent notices, and that the notice referred to the general section, 55A (1).
The landlord argues that the tenant is well aware of their rights to challenge the notice. The landlord states there had been a previous application made for termination for anti-social behaviour in July 2024 (which was unsuccessful as the landlord had served only two notices).
The requirements in 55A(2)(b) (i) – (iv) are clearly conjunctive, meaning that each is essential for a valid notice.
Unlike a notice issued under section 51(3) of the Act to terminate a tenancy, which also has conjunctive requirements but may be excused from strict compliance under section 51(4), there are no such provisions contained in section 55A. This indicates that each requirement of section 55A is of equal importance and that none can be omitted.
The application for termination for anti-social behaviour is dismissed. Name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
The tenant has been substantially successful and is granted name suppression.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the landlord. Upon careful consideration, I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion in section 95A (4). The Tribunal also orders suppression of the landlord’s name.

Tenancy Tribunal case 5109428 — 14-day notice

At a glance

Tenancy Tribunal case 5109428 — 14-day notice

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