What was Tenancy Tribunal case 5214251 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 5214251?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5214251?

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

Where can I read the official tribunal order for case 5214251?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11716592-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5214251 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 5214251?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5214251?

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

Where can I read the official tribunal order for case 5214251?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11716592-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5214251 — 14-day notice

Tenantcheck Insights

Reasons

Both parties attended the hearing by video conference.

The landlord has applied for termination of the tenancy.

Should the tenancy be terminated?

The landlord has applied for termination under section 55(1)(c) of the Residential Tenancies Act 1986 (RTA) which provides as follows: (1)Subject to subsection (2) of this section, 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 — ... (c) 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 constitute a part.

The facts of the case are not disputed. The tenant lives in premises that adjoin premises occupied by some of the landlord’s other tenants. The tenant who is the respondent in this claim (hereafter ‘the tenant’) lives at No.1 and the person she assaulted lives at No.3 (hereafter ‘the other tenant’). On 18 February the tenant carried out a sustained assault on the other tenant through the other tenant’s car window. The assault paused after she was restrained by her father but continued when she entered the other tenant’s car through the back passenger door. She stopped after again being restrained, this time by another person. The evidence regarding the assault on the other tenant was not disputed. The video evidence clearly showed the tenant striking at someone through a car window. The video did not show the person being assaulted however the tenant did not dispute that it was the tenant who lives at No.3.

The assault was serious. It would suggest that the tenant should lose her right to stay at the property. In the hearing it appeared likely that an order for termination would be made and the tenant would have a maximum of four weeks to move out. However the case not only requires a finding that there was an assault. It also requires consideration of Section 55(2). S.55(2) provides a limited ability for the Tribunal to refuse to make an order terminating a tenancy where an assault has occurred. (2)The Tribunal may refuse to make an order under subsection (1) of this section 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.

There are three aspects to s.55(2). The first refers to the breach being remedied, the second to the landlord being compensated for any loss and the third to whether the tenant will commit any further breach of the kind to which this section applies.

Each aspect needs to be addressed. An assault is not a breach that is capable of remedy. It could be concluded that if the breach is not capable of remedy, the requirement to remedy has not been met, and therefore the Tribunal must terminate the tenancy. However this section of the Residential Tenancies Act 1986 was addressed by Justice Keane in a High Court decision - Collins v Housing New Zealand Ltd [2004] NZAR 665. I refer to paras 35-39: [35]Subsection (2) begins with a condition, expressed elliptically, requiring that the Court be satisfied “that the breach has been remedied (where it is capable of remedy)”. This could mean one of two things. It could mean that unless the breach is capable of remedy and has been remedied the condition will be unsatisfied. Or it could mean that where the breach is not of a kind that can be remedied, it becomes irrelevant’ [36]On the former view, for which HNZ contends, an assault or the threat to assault must always result in an order terminating the tenancy, because in contrast to a breach of a positive covenant, an assault or threat can never be remedied. Housing New Zealand relies by analogy on Hoffmann v Fineberg [1948] 1 All ER 592, Harman J and Expert Clothing Service & Sales Ltd v Hillgate House Ltd [1986] 1 Ch 340, 350 (CA), which concern the opportunity to remedy a breach before re-entry or forfeiture under s 146(1) of the Law of Property Act 1925 (UK); the equivalent to s 118 of the Property Law Act 1952. [37]I accept HNZ’s analysis to this extent. A threat once made, or an assault once committed, cannot be remedied. But I am loathe to conclude that, once the Tribunal finds as a fact a threat or an assault, the discretion becomes spent. That could mean that a technical assault, or words in haste, could pre-empt the Tribunal from considering the two remaining issues s 55(2) presents, which are of equal significance. [38]I prefer the interpretation that, if the breach cannot be remedied, that issue is to be set to one side and the Tribunal is to consider the two remaining issues. There may well be cases where the Tribunal concludes, despite the fact of breach, the landlord can be compensated for any loss, and there is unlikely to be any further breach. The Tribunal might then well be justified in deciding to refuse to make the otherwise mandatory order. [39]Of those two conditions, only the third is of significance in this case. There is no question of compensation for loss. But to be satisfied as to that, the Tribunal did have to assess Mr Collins and whether he was likely to be threatening again.

In the present case compensation for loss is not an issue. The question to be addressed is whether the tenant is likely to carry out an assault again at the property. This question is extremely important because the Tribunal must assist the landlord to eliminate any further assault or threat of an assault by this tenant at the property. A person who witnessed the video could reasonably conclude that the only reliable course of action to prevent the tenant repeating her out of control aggression would be to end her tenancy at the property. However to understand the situation that arose on 18 February more completely, it is important to consider the events that led to the tenant assaulting the other tenant that day.

On 12 February, 6 days before the assault, there was an incident at the property involving the tenant and the other tenant. There is not CCTV footage of that event and accounts of the cause of the conflict cannot be established. The landlord submitted that the tenant caused the problem but the tenant blamed the other tenant for the disturbance.

On 16 February two associates/family of the other tenant entered the tenant’s premises. The tenant referred to it as a home invasion. She said that these two people had recently been released from prison. The tenant is a solo parent with four children. The two people entered the tenant’s home when the children were present. The tenant was assaulted. In the hearing she showed bruising and a scar from a knife injury that she said happened at that time. When the two associates left, they took the tenant’s 65” TV with them. There is a video of the that event. It was not shown at the hearing. The landlord said that the tenant can be seen waving a kitchen knife, trying to slash the other tenant’s car tyres after the people left her home with her TV.

This then is the context of what happened two days later, on 18 February. The tenant believed the other tenant sent her family/associates to invade her home, assault her and to steal her belongings because of the argument on 12 February. The tenant was unable to provide any evidence to show that the other tenant instructed the associates to carry out the home invasion. She assumed that to be the case because they came from the other tenant’s premises and were closely connected with the other tenant.

I am satisfied the tenant attacked the other tenant because her TV had been stolen, she had been attacked in front of her children and she reasonably concluded that the other tenant instigated it. The assault was in retaliation for the assault made on her in her home. I am satisfied that what happened on 18 February was the result of serious provocation of the tenant on 16 February. This is not the case of one innocent party and an aggressor.

The tenants’ conduct in regard to dealing with their differences in February was appalling. However since the events on 12 to 18 February, no other assault has occurred. The property manager was phoned during the hearing and confirmed this. Almost two months have passed. This speaks to an event rather than an ongoing conflict. It is important when determining whether the tenant is likely to be threatening again.

There are three other factors which impact on whether I can have confidence that the tenant is unlikely to assault another tenant at the property. Firstly, the tenant recognizes that she has an anger management problem. She has been getting help with anger management. An awareness of an anger problem is essential in modifying aggressive behaviour. The seriousness of the assault confirms that the tenant needs that assistance.

The second factor is that I have only been made aware of conflict at the property between the tenant and the other tenant. There have not been assaults on several other tenants. The tenant told the Tribunal that since the incidents she has met with the other tenant and they have sorted what was at issue between them. That appears likely because there have been no further incidents between them.

The third factor is that the tenant is now aware that her tenancy will likely be ended immediately by the Tribunal if there is any further assault. The tenant values the home she has for her children. It will assist the tenant to exercise control, knowing that a failure to do so will affect her children. Summary

The actions of the tenant in February are serious breaches which are in no way condoned by the Tribunal. They are breaches that are not capable of remedy. However having considered the circumstances in which the assaults occurred, the absence of any assaults since 18 February and the factors that suggest there will be no further assaults, I have refused to make an order terminating the tenancy. The claim for termination is dismissed.

Reasons

Both parties attended the hearing by video conference.

The landlord has applied for termination of the tenancy.

Should the tenancy be terminated?

Tenancy Tribunal case 5214251 — 14-day notice

At a glance

Tenancy Tribunal case 5214251 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions