What was Tenancy Tribunal case 5253802 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 5253802?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5253802?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 5253802?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11920216-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5253802 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 5253802?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5253802?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 5253802?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11920216-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5253802 — Harassment

Order

The Tribunal orders suppression of the parties’ names and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
Some information provided by third parties was withdrawn from evidence and was not able to be put to the tenant. The tenant, in her own evidence, confirmed much of the information contained in this withdrawn evidence and it has been taken into account in this decision to the extent that it was confirmed by the tenant at the hearing.

Should the tenancy be terminated?

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 landlord had not warned the tenant about the alleged breaches or the consequence of continued breach in this case and the first indication the tenant received about the distress of her immediate neighbour was this application.
The tenancy began in October 2010. The tenancy agreement provided is dated 12 October 2012 and is for a periodic tenancy.
The landlord lives outside of Christchurch and was described by the tenant as “hands-off” and there was no evidence that there have been any significant issues between the parties prior to this.
The landlord agreed that they did not attend the property regularly and said they had inspected in the past approximately annually and with the tenant’s consent.
They did not feel they could access the property without tenant consent (although they are lawfully entitled to provided they comply with the requirements of the Act) but had tried to arrange to meet with her since the issues raised in this application came to their notice.
The landlord had sent two text messages to which the tenant had not responded. The tenant gave evidence that she had been in hospital on at least one occasion and had not been able to meet the landlord at the property or respond to the message.
The landlord did not phone the tenant or email her about the issues raised in this application and nor did they deliver any notice to the address.
The tenant gave evidence that if she had been aware of the distress being felt by her immediate neighbour, she would have ceased contact with them.
To support this claims, she said that she had ceased contact once the neighbour had blocked her on social media.
The landlord alleges that the tenant has breached their obligations in two ways. a. The tenant has set fire to a large area of garden causing damage to shrubs and foliage and the landlord considered this likely an illegal burn off. b. Additionally, the landlord believes that the tenant has interfered with the reasonable peace, conform and privacy of both the landlord’s other tenants and others residing in the neighbourhood.
The landlord believes these breaches are not capable of remedy because the damage has already been done to the garden and the neighbours have already been distressed by the tenant’s behaviour.
In terms of the fire in the garden, the tenant said she checked the fire service website to see if she was allowed to burn garden material and believed that she could do so.
She considered that the gardens were overgrown and unsafe, and this was adding to her distress about alleged trespassers at her property.
She gave evidence that she was left to maintain the gardens during the course of the tenancy except for a few times when the landlord had sent an arborist to the property.
The tenant acknowledged that the Council had told her that the burn off was against current regulations, and she said that she had not burnt any further garden waste since receiving this advice. She also acknowledged that she could have contacted the landlord to ask that the vegetation be tidied up rather than trying to attend to it herself.
The photographs supplied by the landlord show that the garden has been burned and the lower trunk of a large oak tree has been painted white.
There were no photographs provided to show what the garden looked like before, but it was described by the landlord as being on a stream bank and being filled with shrubs and other plants. The other side of the stream is visible in the photographs, and it is reasonably densely covered with vegetation including what appears to be convolvulus vine and ivy.
There was no suggestion that valuable plants or infrastructure had been damaged, and one landlord party suggested that the fire had not been a bad thing as it had cleared the area of overgrown vegetation.
The tenant has said that she will not do this again now that she knows it is against council regulations.
Although it is accepted that the tenant should not have used fire in this way to clear foliage and plant debris from the property, I cannot find that this was a significant enough breach to warrant the tenancy being terminated.
This breach is not of such a nature that it would be unequitable not to terminate the tenancy under section 56(1)(c) of the Act.
It is clear from evidence of both parties that the tenant has been under significant distress over recent months. At least some of this distress related to incidents the tenant believes to have occurred at the tenancy property.
The tenant provided evidence that her car had recently been stolen from the property and found by police. No other evidence was provided by the tenant to support her claims that people had been trespassing on her property and verbally abusing her since the beginning of the year.
The tenant acknowledged that these claims had not been believed by police and others and that she had spent some time as an inpatient at hospital in relation to this and her behaviour in response to the alleged trespassing at her address.
The tenant acknowledged that she was facing criminal charges in relation to an incident connected with these matters.
The tenant also acknowledged that she had written on more than one occasion to neighbours making allegations as to various other neighbours potentially being involved in the alleged trespassing behaviour targeting her property.
The tenant provided no evidence of the trespassing and associated allegations (apart from the return of her stolen car) but it is clear that she believes herself to have been the target of this behaviour.
The landlord gave evidence that they have been contacted by a number of neighbours including their other tenant who lives next door (in a connected premises) on more than one occasion.
Some supporting evidence was unable to be considered by the Tribunal as it had been withdrawn by those who provided it and therefore was unable to be put to the tenant.
The evidence available to the Tribunal and given orally by the landlord clearly shows that the tenant’s behaviour (whatever her motivation or intention may have been) has caused some serious distress to the direct neighbour and to other neighbours in the area.
However, I also take the following points into account: a. Both parties wish the tenancy to end, and the tenant is taking steps to find new accommodation. b. The tenant acknowledged that she is suffering from various mental health difficulties and these worsened from earlier this year. c. The tenant has had two stays in hospital and said that things are improving for her recently given progress with finding her stolen car and police involvement in that matter. d. She is aware that her tenancy is at risk and any further behaviour of the kind referred to in this application will most likely result in a new application for termination. e. She confirmed that she had no intention to bother her immediate neighbour any further and there was no evidence provided that she had contacted her neighbour (or any other neighbour) since the neighbour blocked her on social media in early May. f. Criminal charges are pending in relation to other matters connected with these events and this will be further incentive for the tenant to be mindful of how her behaviour is affecting others. g. The tenancy has been of lengthy duration and there is no evidence that any matters such as those currently before the Tribunal have occurred in the past 13 years. h. Given the length of the tenancy, it seems unusual that the landlord did not make more effort give the tenant an opportunity to respond to the allegations. i. Further, the behaviour, although unacceptable, was over a reasonably short duration and the landlord was aware that the tenant was receiving mental health treatment.
Given that the tenant was not offered any opportunity to correct her behaviour prior to the Tribunal application and given the other factors above, I do not consider that the breach is of such a nature that it would be unequitable not to terminate the tenancy under section 56(1)(c) of the Act.
However, I would make the following points for the benefit of the parties.
Some of the tenant’s behaviour would fall into the category of anti-social behaviour under section 55A and termination could have been sought under this section of the Act, if notices had been given, as laid out below. Subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied: a.on 3 separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission, 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 and; c.the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice. [emphasis added]
The Act confirms that anti-social behaviour includes harassment or any act (whether intentional or not) that reasonably causes alarm, distress or nuisance that is more than minor.
No notices were given to the tenant under this section and termination cannot be ordered but it would be sensible for the parties to make themselves more aware of their rights and obligations in this regard.
The tenant should be aware that any continued behaviour of the kind the landlord has referred to in this claim may result in anti-social behaviour notices being issued and, if the requirements of the above section are met, the Tribunal must terminate the tenancy under the anti-social behaviour provisions in the Act.
The tenant should also be aware that even without anti-social behaviour notices, any further ongoing behaviour of this kind is likely to result in a new application by the landlord. Now that the tenant is on notice regarding the impact of her behaviour on her neighbours, any new claim, well supported by evidence, is likely to result in termination.
The tenant is also aware that no-fault terminations are now available to a landlord and the landlord can terminate the tenancy with 90 days’ notice with no reason having to be given.
It would be to the benefit of both parties for the tenant to find a new home as soon as possible without any of the above provisions being called upon.
Neither party asked for suppression, but I have ordered it, nonetheless.
There is at least one current criminal charge in relation to matters raised in this hearing and police reports have been filed by both the tenant and at least one neighbour. These issues were freely discussed at the hearing as was the tenant’s mental health and wellbeing. Given that background, I do not consider that it is appropriate to name the parties here.

Tenancy Tribunal case 5253802 — Harassment

At a glance

Tenancy Tribunal case 5253802 — Harassment

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions