What was the outcome of Tenancy Tribunal case 4556672?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4556672?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4556672?

The primary dispute was Harassment. Related themes: Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 4556672?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9249734-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4556672?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4556672?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4556672?

The primary dispute was Harassment. Related themes: Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 4556672?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9249734-Tenancy_Tribunal_Order.pdf.

Room 519, 124 Willis Street, Te Aro, Wellington 6011, St Tenancy Tribunal Case 4556672 — Harassment

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Reasons

Both parties attended the hearing with Ms Jo DeJong representing the landlord at the hearing and Mr Jamie Meyer (also representing the landlord) attending part way through the hearing by teleconference.

The tenant, Melanie Dawn Young known as Mara Young (they/them), has filed an application against the landlord in respect of a boarding house tenancy which started on 22 July 2020 and ended on 17 May 2023. The tenant claims compensation and exemplary damages in relation to the following claims: a. The landlord’s notice to terminate the tenancy was retaliatory; b. The landlord has discriminated against the tenant by terminating the tenancy; c. The landlord has harassed them.

The tenant has the burden to prove their respective claims. The standard of proof required is the usual civil standard of “on the balance of probabilities.” Put another way, the tenant must persuade me that what they say is more likely than not to be the case.

I do not need to be completely certain, but I need to be more certain than not. In deciding any particular claim, I must consider all the evidence presented (including oral testimony). I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all evidence.

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Background facts and evidence of each party

On 18 April 2023, the landlord gave the tenant, Mara, a 28-day notice ending the boarding house tenancy on 17 May 2023 (“the termination notice”). Mara claims that the notice is retaliatory in response to attempts by them to raise complaints about other tenants residing at the boarding house with the landlord. In addition, they believe that the termination notice was motivated by discrimination, and that the landlord’s representative, Jamie Meyer, has harassed them. Prior to service of the termination notice, Mara says that they made three attempts to assert their rights as a tenant by making complaints about other tenants. Mara decided to vacate the premises on the termination date, without awaiting the outcome of this application to the Tribunal. First incident

Mara described an incident in the communal lounge sometime in early March 2023. They say that another long-term tenant (Tenant B) approached them while they were relaxing in the lounge. They say Tenant B has a well-known reputation for being problematic and the landlord is aware of this. Mara says they had previously advised Tenant B not to approach them and to leave them alone. When Tenant B approached and spoke to them on this occasion, Mara asked: “why are you talking to me” and then told Tenant B to leave them alone.

Mara voiced their concerns about this incident to Jamie Meyer on 9 March 2023 and says that they were “gaslighted” by him for doing so. “Gaslighting” is a commonly used term to describe the action of tricking or controlling someone by making them believe things that are not true, especially by suggesting that they may be mentally ill. It is a form of psychological manipulation in which the abuser attempts to sow self-doubt and confusion in their victim’s mind, forcing them to question their own judgment and intuition. Mara says Jamie commented that their response to Tenant B was “schizophrenic” and a “dick move” and he attempted to manipulate Mara into agreeing with his assessment. He also suggested that it would have been better for them not to engage with Tenant B and shut the conversation down. Mara says that they “somewhat agree” with Jamie’s suggestion on this point.

The landlord provided evidence (an email circulated to boarding house staff on 9 March 2023 at 4.40pm) that prior to Jamie’s conversation with Mara, the landlord had received complaints from 2 other tenants about Mara’s behaviour. The other tenants said Mara was not looking themselves and when they asked if Mara was ok, Mara swore at them and walked away. Mara then chased them to the lifts saying never to speak to them again.

The landlord also provided evidence that Tenant B had raised concerns about Mara’s behaviour. Tenant B provided a statement that she used to exchange small talk with Mara in the lounge but became uncomfortable after one particular interaction and exited the room. She says that ever since then, Mara’s behaviour towards her was aggressive and anti-social. She then referred to the above incident saying that when she wished Mara “good morning” they replied angrily that Tenant B was never to talk to them. She reported this to management and has since taken steps to avoid Mara.

Jamie Meyer gave evidence that on receiving a text from Mara about the first incident he spoke to them for about 25 minutes on 9 March 2023. He admits saying to Mara that their reaction to Tenant B was a “schizophrenic response” and he suggested that it would have been better for them to tell Tenant B “I prefer some alone time.” He says that he was trying to explain to Mara that objecting to Tenant B speaking to them and then continuing to talk to Tenant B was not great and he wanted to give Mara some suggestions as to how they could respond. He also says that he did not mean to imply that Mara was schizophrenic and used the term to describe the response. He doesn’t recall using the term “dick move.”

After speaking with Mara, Jamie sent an email to boarding house staff (dated 9 March 2023 at 6.20pm) recording his chat with Mara for 25 minutes; that Mara was having issues with one or two people; that Mara did not want Tenant B to speak to them; and stating: “I suggested [they] say “I want some alone time please” and to look away because it is incongruent to ask a question of someone you don’t want to speak to. Let’s monitor the situation.” Second incident

Sometime after the first incident, Jamie visited Mara who suspected it was prompted by somebody complaining about them. When Mara asked if that was the reason for his visit, he replied “You tell me.” He then asked whether Mara was having any problems. Mara replied “No.” However, Mara confirmed at the hearing that they were having a problem with another neighbour, Tenant C, and her guest making noise and being disruptive. Mara says they did not want to talk to Jamie about it at when he asked because they were tired and needed sleep.

The next day, Mara says that Tenant C and her guest were making a lot of noise and slamming doors which Mara could hear from her room at the other end of the corridor. Mara says it carried on for 1-2 hours, early to mid-afternoon. Mara admits getting “fired up” and shouting at them from her doorway. Tenant C and her guest told Mara to stop shouting and Mara says the situation escalated a little before Tenant C and her guest left. Mara reported the disruption to reception, then sent Jamie Meyer a text expressing frustration at what happened. Jamie then called Mara.

Mara’s evidence is that Jamie was not interested in what Mara had to say about the incident and mentioned that Mara did not take the opportunity to speak to him the day before when he had asked if there were any problems. He told Mara that in fact complaints had been made by Tenant C and C’s guest about Mara slamming doors and shouting which had prompted his prior visit to Mara the day before. Mara also alleges that Jamie shut down her explanation and said inappropriate and obnoxious things to Mara calling them “mental.” Mara alleges Jamie was bullying and aggressively gaslighting them; violating Mara’s human rights and discriminating against Mara because of a perceived or actual mental health disability.

A week after this conversation, Mara bumped into Jamie and had a brief chat about their last conversation telling him that they were not happy with how he had spoken to them. Mara says Jamie acknowledged this but also said if anything else happened Mara would be kicked out.

Jamie gave evidence that he went to check on Mara (as per para 13 above) after receiving complaints from Tenant C and her guest. He wanted to see if Mara was alright without levelling any allegations at her. He says that Mara was unwilling to give any information. When Mara complained the next day about Tenant C, he denies calling Mara “mental” or referring to them as “mentally ill”. He also denies telling Mara that if they complained again, they would be kicked out. Jamie says that he advised Mara that if there were multiple complaints between tenants at the same time, the landlord would offer to move one tenant to a different room. If the issue is not resolved and conflict between the tenants continues, then he warned that the landlord would likely have to terminate both tenancies to minimise the impact on other tenants in the boarding house.

Jamie also gave evidence that he would not address Mara in the manner alleged by calling them “mental”. He says that he has been a property manager for 18 years and has managed the St George for 9 years; he is used to dealing with an array of tenants from different backgrounds and those with different disabilities. He has employed staff with different disabilities. He denies that he would discriminate against anyone based on a perceived or actual mental health disability. He says that he employed Mara as a cleaner for the St George for some of the tenancy and he was happy to have Mara in the team. However, Mara discontinued that role due to COVID concerns and spent weeks in their room withdrawn. Jamie says he was concerned for Mara’s health as a result. Jamie says that he tries to run a safe environment and is not prejudiced and stands by his reputation. Third incident

On the evening of Saturday 15 April 2023, Mara sent a message to the house manager advising that Tenant D’s behaviour was out of control for 3 hours on and off between 7.30pm and 11.00pm. Mara reported that Tenant D was abusive and aggressive, swearing and calling Mara names and threatening Mara when Mara advised her that they were recording her. The manager suggested Mara call Police. When Police arrived, Tenant D had gone quiet and would not open the door to her room. The Police said there was nothing they could do, and it was a landlord issue. On Monday 17 th April, Mara sent the manager an update summarising D’s behaviour, Mara’s response, and the Police response. Mara commented that “nobody should have to deal with such toxic, insane, rude and abusive behaviour making their living environment feel unsafe like seriously.”

Mara presented the recording taken on her phone of the disruption from Tenant D. The recording does not capture any person in the frame and is simply a shot of an empty corridor with closed doors to the rooms. Mara can be heard calling out down the corridor several times that they are recording Tenant D and would be passing the recording onto Jamie. Two screams can be heard (evidently from Tenant D) in response to Mara. The recording does not feature any evidence of Tenant D calling Mara names; being abusive or threatening towards Mara as alleged. If anything, the recording could be seen as Mara goading Tenant D for a reaction. The landlord says that they were concerned about Mara’s behaviour when they viewed the recording.

The next day, 18 April 2023, the termination notice was served on Mara.

Mara sent Jamie an email on 21 April 2023 complaining that they were being unfairly discriminated against and treated in a very unethical manner for speaking the truth about Tenant D’s disruptive and out of control behaviour. Mara says the email was blocked, but I accept the landlord’s evidence that it was not sent to the email address for service on the tenancy agreement. Summary of each party’s evidence

In summary, Mara claims that other tenants’ problematic behaviour was directed at and affected them. When raising these problems and asserting their rights to quiet enjoyment in their use of the boarding house room and facilities, Mara says that the landlord’s response was to terminate the tenancy rather than try to address and resolve the complaints. Mara says the landlord accused them of the same behaviour that they were complaining about, and warned that if they complained again, they would be kicked out, and that is exactly what happened.

Mara believes the complaints from other tenants are unsubstantiated and that there was minimal communication from the landlord about the complaints against Mara and little evidence of the landlord trying to resolve matters.

For the above reasons, Mara says the termination notice was retaliatory and her treatment by Jamie was discriminatory.

Mara decided to vacate the tenancy without waiting for the outcome of this application because they felt uncomfortable since the notice was served; they felt the environment was too tense and hostile for them to stay; and, they were suffering high levels of anxiety around the possibility of being severely reprimanded by the landlord in some face to face interaction, especially after filing this application.

Mara described the impact of the termination and subsequent homelessness and displacement on their physical and mental health and seeks compensation to cover their moving costs and the emotional stress and trauma, together with exemplary damages.

The landlord’s evidence is that other tenants were complaining about Mara’s behaviour in the last 6 months of her tenancy. Prior to that Mara’s tenancy was fine. The landlord produced emails from Tenants B and C describing the behaviour and an email from one of the boarding house staff members recording other complaints received. The complaints described behaviour such as yelling, swearing, and lashing out, kicking and banging on doors of those Mara believed were slamming their doors; Mara telling people to leave them alone and never to speak to them. Tenant B felt very uncomfortable and wary of what she described as Mara’s anti-social and aggressive behaviour; Tenant C felt threatened by and unsafe around Mara.

The landlord says they tried to do what they could to resolve tensions between the various tenants by talking to the parties involved. Mara and Tenants C and D were on the same floor. Jamie says he offered to transfer Mara to another room, but she refused the offer. In the end, it was evident that Mara was the one person involved in several incidents that different tenants complained about. Jamie commented that in his experience where there is one person involved in many incidents, they are likely to be the problem. He said that he has to consider all tenants in the boarding house and where conflict is not resolved, sometimes there is no other option but to terminate a tenancy. In this case, he confirmed that Mara and Tenant D were both given notices terminating their tenancies at the same time. Tenant C left voluntarily. Therefore, the landlord argues that the termination was not retaliatory but was a necessary response to preserve a safe and peaceful environment for the many other tenants living in the boarding house. Was the landlord’s notice to terminate the tenancy retaliatory?

Section 54 of the Residential Tenancies Act 1986 (RTA) provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: “in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised 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”

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00 (see s 54(2), (3) and Schedule 1A RTA).

There are four issues to consider: a. Does the termination notice comply with s 51 RTA? b. If so, was the application made within 28 working days of the notice being served. c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord? d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?

The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel.” Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.

Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice which is proved to be an overriding one beyond the tenants’ actions. In that regard, the landlord must provide convincing evidence that their reason existed independently, and not because of, the tenants’ actions.

I am satisfied on the evidence that the termination notice complies with s 51 and Mara’s application was made within 28 working days of the notice being served. Therefore, I consider the remaining criteria. Was the landlord wholly or partly motivated by the tenant’s complaints to terminate the tenancy? If so, was termination justified?

I find that prior to the first complaint raised by Mara, there is evidence of other tenants complaining to the landlord about Mara’s behaviour. After Jamie met with Mara to discuss the first incident she raised, he also distributed an email to staff with a brief summary of their discussion and a direction that staff monitor the situation. Further complaints ensued from other tenants as detailed in emails produced by the landlord. Therefore, the landlord was already on notice of and seriously concerned about complaints against Mara. Once Mara then started to complain, the landlord needed to determine how to deal with the conflicting complaints between neighbouring tenants.

The St George is a multi-storey boarding house which accommodates up to 180 tenants at any one time. I accept that when there are problems or conflict between tenants, it undoubtedly affects other tenants and has the potential to adversely affect the safety, peace, and comfort of the environment. The landlord acknowledged that it can be difficult dealing with internal disputes. It would be particularly difficult to determine “who is in the right” when tenants are pointing the blame at each other over the same incident. In that regard, I do not consider it unreasonable that the landlord determined that Mara may be the cause of some of the conflicts, given that they were involved in the three incidents raised and some other complaints from different tenants.

The recording produced by Mara of the disturbance which they claim was caused by Tenant D does not support their claim to the extent required, on the balance of probabilities. Mara can be heard on the recording calling out to Tenant D and warning her that she is recording her for the purpose of showing it to the landlord, which could be seen as a provocation. Someone (apparently Tenant D) can be heard letting out two screams in response to Mara. It is difficult to determine who started the disruption, but what is clear is that they are both actively involved in the disturbance.

I accept that there will be circumstances when a landlord cannot determine who is at fault and sometimes both parties in a dispute may be responsible to some degree. In those circumstances, in order to protect all tenants, the solution may be to terminate the tenancies of the complainants involved in the fracas. This is what happened in this case when matters came to a head with the third incident detailed above. The landlord determined that the best course was to terminate Mara and Tenant D’s tenancies. I accept that this was only after offering Mara another room away from Tenants C and D; after receiving complaints that started before Mara complained; and, after warning Mara of the consequences of any continuing conflict.

In summary, after carefully considering all the available evidence, I am satisfied that the landlord’s decision to terminate Mara’s tenancy was motivated by complaints about Mara from other tenants and various disruptive incidents in which she was involved. To that extent, it might be argued that the notice is partially motivated by Mara’s complaints. However, I consider the landlord’s reasons for ending the tenancy were justified to stop the conflict and disruptions from impacting the quiet enjoyment of other tenants in their use of the boarding house, and to ensure matters did not escalate. This approach is also consistent with the landlord’s duties under section 66G RTA not to cause or permit interference with the reasonable, peace, comfort, or privacy of all tenants in their use of the premises.

For the above reasons, the termination notice is not retaliatory, and the claim must be dismissed.

Has the landlord discriminated against the tenant?

A landlord must not discriminate against a tenant in relation to the grant, renewal, variation, or termination of a tenancy, in contravention of the Human Rights Act 1999. See sections 12(1) and 109(3) RTA.

Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 12(1) and Schedule 1A RTA.

Mara alleges that landlord has terminated her tenancy because he believes Mara has mental health issues. Mara emphasizes allegations that Jamie referred to them as “mental”, having a “mental illness” and referring to their behaviour as “schizophrenic” and a “dick move.”

Jamie denied using the language alleged except the reference to “schizophrenic” which he says he used in the context of describing Mara’s response to another tenant not her actual state. I accept that the term was used as an informal slang term.

I have already made a finding that the landlord’s reason for terminating the tenancy was because of complaints against Mara and various conflicts in which she was involved. It follows, that I am not persuaded that termination was on the basis of discrimination for some perceived or real mental health disability. Therefore, the claim that the landlord discriminated against the tenant when ending the tenancy is dismissed.

Has the landlord harassed the tenant?

A landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 66G(2) RTA.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 66G(4) and Schedule 1A RTA.

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.

As already detailed above, Mara gave evidence about verbal exchanges with Jamie and alleges that he spoke to her in an inappropriate bullying, manner. Mara described his responses as “gaslighting.” Most of the exchanges are disputed except for Jamie’s acknowledgement that he used the word “schizophrenic.” However, the use of this word on one occasion is not sufficient to establish a breach of quiet enjoyment. There is also no independent evidence available to me to support Mara’s claims. In summary, there is insufficient evidence to establish that the landlord breached Mara’s quiet enjoyment and harassed them. Therefore, the claim must be dismissed.

As the tenant has not succeeded with their claims, they are not entitled to suppression of their name and identifying details.

Reasons

The next day, 18 April 2023, the termination notice was served on Mara.

For the above reasons, Mara says the termination notice was retaliatory and her treatment by Jamie was discriminatory.

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00 (see s 54(2), (3) and Schedule 1A RTA).

For the above reasons, the termination notice is not retaliatory, and the claim must be dismissed.

Has the landlord discriminated against the tenant?

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 12(1) and Schedule 1A RTA.

Has the landlord harassed the tenant?

A landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 66G(2) RTA.

As the tenant has not succeeded with their claims, they are not entitled to suppression of their name and identifying details.

Tenancy Tribunal case 4556672 — Harassment at Room 519, 124 Willis Street, Te Aro, Wellington 6011, St

At a glance

Tenancy Tribunal case 4556672 — Harassment at Room 519, 124 Willis Street, Te Aro, Wellington 6011, St

At a glance

Claims & awards

Order

Reasons

Has the landlord discriminated against the tenant?

Has the landlord harassed the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Has the landlord discriminated against the tenant?

Has the landlord harassed the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions