Published tribunal order
Tenancy Tribunal case 4508969 — Property damage at Room 6, 90 Bank Street, Whangarei 0110, Beds on Bank
Decided 25 Jul 2023 · Published 25 Jul 2023 · Application 4508969
Tenant favoured
- Property damage
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Property Brokers Wairarapa Limited (as agent for Lloyd-Jones Investments Ltd) is to pay Alistair May $1,090.00 immediately, calculated as shown in table below.
Reasons
Background
- The property is a boarding house.
- Mr May’s tenancy began on 22 December 2022.
- On 28 December, Property Brokers (Mr Faulkner) sent Mr May an email stating that the tenancy was terminated and giving Mr May until 4pm the next day to vacate the premises.
- Mr May’s application seeks compensation and exemplary damages in respect of the termination, and refund of the bond.
- The landlord’s application seeks the cost of repairing the lock, repairing and painting the walls, and exemplary damages for using the premises for an unlawful purpose.
- The hearings took place in Whangarei on 28 June and 12 July 2023. Both parties attended the hearings. Ms Wilson represented the landlord. Termination
- A landlord may terminate a boarding house tenancy if the tenant has 1 : a. Caused, or threatened to cause, serious damage to the premises; or b. Endangered, or threatened to endanger, people or property; or c. Caused, or threatened to cause, serious disruption to other tenants.
- Ms Wilson clarified that the termination was principally based on the third grounds, that Mr May caused serious disruption to other tenants.
- Ms Wilson provided: a. A statement from herself, and from Mr Faulkner. b. A statement from Mr Lloyd-Jones, the owner of the property. c. A statement from Mr Ward, who was a tenant in room 6 at the relevant time. d. A statement from Mr Field, who was a tenant in room 2 at the relevant time.
- Ms Wilson had limited direct involvement with Mr May after the start of his tenancy, but she states the following: Mr May then proceeded to lock himself out of his room 28 th December and told myself and owner someone had run off with his phone. So he asked another tenant to call. After watching the [CCTV] camera footage, Mr May’s behaviour was very strange walking down the hallway and to the below level in his underwear at strange [h]ours of the night, opening the door and looking outside. 1 Section 66U(1)(a) Residential Tenancies Act 1986 (“RTA”)
- Mr Faulkner also had limited direct involvement with Mr May. Mr Faulkner details the information that was passed on to him about Mr May’s behaviour. Mr Faulkner then states: I then decided to call the tenant. Mr May answered the phone. His opening remarks and the first few interactions with him over the phone led me to believe that Mr May was under the influence of either drugs or alcohol. I then decided to use a technique of ‘mirror’ which means I would try to talk to Mr May in a manner that I could potentially get through to him. Within the first few moments of the conversation, I had concluded that what Mr Lloyd-Jones had told me about Mr May was, under the balance of probabilities, accurate.
- Mr Lloyd-Jones states: On 27 December I got a call from Andrea around midday, a tenant at 90 Bank Street saying that Alistair had locked himself out of his room and needed to be let in [...] I then looked on the security cameras that have 2 way audio and saw Alistair attempting to break into the room with large butcher knives from the kitchen. [...] I proceeded to check the security camera footage all the way up to the night before. And saw nobody else but Alistair entering his room. He was obviously intoxicated, coming in and out of the room roughly every hour all hours of the night at some points wandering around in his underwear through the halls, leaving the building and returning
- Mr Ward states: This is to inform you of the strange behaviour of Alister May [...] Alister was constantly seen and heard damaging the property, along with yelling and screaming at himself in a violent manner. This made me feel uncomfortable and unsafe around him. On an occasion I saw him walking at the front of the building in his underwear with toothpaste all over him which was strange behaviour
- Mr Field’s statement details several “encounters” with Mr May, including : I felt so unsafe with Alister in the building to the point where I stopped all visits from my 6 year old daughter and limited visits from my 16 year old son when I thought Alister wasn’t in the building. The next encounter with him was when I thought he wasn’t in the building and my 16 year old son and his 15 year old girlfriend came to visit me. I enter[ed] through the front door Alister was there unexpectedly. I tried to avoid him and walk the children straight to my room but Alister tried to engage in conversation with my son. He then made an inappropriate comment about my son’s girlfriend. He then proceed[ed] to hang around outside the door and every time she went to the toilet, he proceed[ed] to stare and make her feel uncomfortable
- Mr May acknowledged that he accidentally locked himself out of his room on two occasions.
- The first occasion was late on Christmas Eve. He was not able to contact the property manager or owner at that time, so he obtained a knife from the shared kitchen and was able to open the door by sliding the blade between the lock and the door jamb.
- Mr May denied the allegations of erratic behaviour and intoxication.
- Mr May challenged the statements provided by Mr Ward and Mr Field. Mr May submitted that: a. Part of Mr Ward’s statement relates to a period of time when Mr May was away from the property. b. There are similarities (both in terms of wording and format) between Mr Ward’s statement and those provided by Ms Wilson and Mr Lloyd-Jones. c. He never met Mr Field’s son, or his son’s girlfriend, and he does not accept that Mr Field is old enough to have a 16 year old son. He had a friendly relationship with Mr Field when he was at the property.
- The question is whether there is sufficient evidence to establish whether Mr May caused “serious disruption” to other tenants
- The circumstances are somewhat unusual in that there are no allegations of excessive noise, or of anti-social behaviour towards other tenants, which are the most common types of serious disruption issues in boarding house tenancies. The allegations relate to erratic or disturbing behaviour.
- The following principles are relevant: a. Boarding houses necessarily involve living in close proximity to, and sharing facilities with, strangers. b. People can have genuinely different subjective views about what amounts to disruptive or disturbing behaviour. c. Incidents of tension or dislike between tenants that do not escalate beyond verbal disagreements or offensive gestures are not grounds for termination 2 . d. To have grounds for termination, there must be a sufficient body of persuasive evidence from other tenants about behaviour that, from an objective perspective, amounts to “serious disruption” 3 .
- My finding is that such evidence is present in this instance, and that therefore the landlord had grounds to terminate Mr May’s tenancy under s 66U(1)(a)(iii).
- I have had regard to the following factors: a. Mr May being in a common area in possession of a knife and scantily clothed is understandable in the context of accidentally locking himself out 2 VIP Properties v Cormack, TT 14/04638/MK, Manukau 3 Henderson v Centrum Management Ltd [2020] NZTT Hamilton 4276832, 4281607 of his room late on Christmas Eve. If that was the only relevant incident, there would not be grounds for termination. b. However, there is evidence of multiple instances of Mr May ‘wandering’ in common areas late at night dressed only in his underwear. Mr Lloyd-Jones viewed footage of this on the CCTV cameras, and Mr Field and Mr Ward both talk about this in their statements. c. This behaviour, along with other behaviour described in the witness statements, such as yelling at himself, and appearing to be very agitated and incoherent, as if intoxicated, is beyond the parameters of “normal” idiosyncrasies that persons living in community must tolerate. d. Ms Wilson confirmed that she received several verbal complaints from tenants during Mr May’s brief tenancy. This, supported by the written statements provided to the Tribunal, shows that Mr May’s behaviour caused a serious disturbance to multiple tenants. This is not an instance of one overly sensitive tenant being upset by the actions of another tenant, and it is not an instance of a personality clash / personal conflict between two tenants. e. Of particular concern is Mr Field’s statement about Mr May’s interaction with his son and his son’s girlfriend.
- I do not accept Mr May’s suggestion that Mr Field invented the events that Mr Field describes n his statement, including inventing the existence of a teenage son.
- Mr May’s propensity to strongly deny certain events, even when such denial forces him into taking unlikely and indefensible positions, tends to support the landlord’s arguments about Mr May’s irrational behaviour.
- There were sufficient grounds for landlord to terminate the tenancy.
- Therefore, the tenant’s claim for compensation / exemplary damages in respect of the termination must be dismissed. Landlord application Repairs to the lock
- The claim seeks $330.00 for repairs to the lock, per quote from Whangarei Mobile Locksmiths.
- Mr May did not strongly contest this part of the landlord’s claim, but he submitted that when he left the property the lock was not in the visibly damaged state that Ms Wilson’s exit report shows it to be.
- Mr May forced the lock twice using a knife.
- I accept that it is likely that this action damaged the lock. The cost of repairs is proven. Mr May is liable for this cost. Repairs / painting
- The claim seeks $1,285.00 for repairs to walls and a complete repaint of the interior of the room, per a quote from Jack & Jill Painting Solutions.
- Ms Wilson confirmed that at the date of hearing, the work had not yet been done.
- The photographs in the exit condition report show some indentations on the walls, but in all but one of the photographs the indentations have been painted over.
- This suggests that the damage did not occur during Mr May’s tenancy. Mr May submitted that when he moved in there was evidence of painting work in progress on the walls – painting materials were present and there were some paint splatters on the floor.
- The landlord has the burden of proof to establish that the damage occurred during the period of this tenancy 4 .
- The evidence provided to me does not establish, to the standard of more likely than not, that the damage shown in the landlord’s photographs occurred during the period of Mr May’s tenancy rather than before it began.
- Therefore, this part of the claim is dismissed. Exemplary damages
- The landlord seeks exemplary damages on the grounds that the tenant used the premises for an unlawful purpose 5 , specifically methamphetamine use.
- The landlord did not carry out a methamphetamine test before or after Mr May’s tenancy.
- The evidence provided by the landlord consists of: a. Evidence relating to Mr May’s behaviour, discussed above; and b. A photograph, taken during Mr May’s tenancy, showing “drug paraphernalia”.
- The photograph shows four narrow glass or plastic tubes, all of the snapped at one end, lying next to several lighters. 4 Section 49B(8)(a) RTA 5 Section 40(2)(b) an 40(3A)(c) RTA
- Mr May denied using methamphetamine at the premises.
- Mr May attempted to argue that the tubes are part of a pipe that he uses to smoke tobacco. Mr May brought the pipe to the hearing.
- The difficulty with the Mr May’s argument is that no part of the pipe that he showed to me looks anything like the tubes shown in the landlord’s photograph. When I pointed this out to Mr May, he reverted to an argument that it is not unlawful to possess broken tubes, and that possession of broken tubes is not proof of drug use.
- The civil burden of proof applies in the Tenancy Tribunal. The landlord does not have to prove their claim to the standard of “beyond a reasonable doubt”. They must prove it to the standard of “more likely than not”.
- In this instance the evidence provided to me does not go beyond establishing a suspicion.
- This part of the landlord’s claim is not proven, and it must be dismissed. Outcome, filing fee
- Both parties have been partially successful in their applications and each must bear their own cost of the filing fee.
- Mr May’s claim for compensation and exemplary damages relating to the circumstances of the termination of his tenancy is dismissed.
- Mr May is entitled to refund of the bond, less $330.00 for repairs to the lock.