What was the outcome of Tenancy Tribunal case 4571189?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4571189?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4571189?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4571189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9280829-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4571189?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4571189?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4571189?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4571189?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9280829-Tribunal_Order.pdf.

Unit/Flat 11, 9 Percival Street, Beckenham, Christchurch Tenancy Tribunal Case 4571189 — Harassment

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The applications are dismissed.

Reasons

Both parties attended the hearing. Ms Wright, Ms Stark and Mr Haines represented the landlord. Background
The landlord has applied to terminate the tenancy based on 3 notices of alleged anti-social behaviour by the tenant.
The tenant has made an application for compensation, and he defends the landlord’s application.
One of the breach notices alleges a drilling noise from the tenant’s unit from the use of power tools. That notice was the focus of the landlord’s application.
I first heard the applications on 29 June 2023. I heard evidence from the parties and from a witness for the landlord.
The degree of distress I observed from the landlord’s witness did not accord with the issue for determination by the Tribunal. I suspect there are broader dynamics as among tenants in the complex where the premises are located.
I adjourned the hearing with a direction that the landlord engage a building practitioner to provide an independent report on the noise produced by the use of the tenant’s power tools. I took that step because the evidence of the parties was so at odds.
The landlord complied with that direction and produced a report by Character Builders Ltd. The report is thorough and addresses all the matters I wanted addressed.
The builder arranged for a colleague to be present with the neighbouring tenant while the tests were conducted.
Because there is mention of some faint audible noise, the landlord submitted that the anti-social notice breach in relation to noise is proved, along with the other breaches, and it still seeks termination of the tenancy. Issues
The issues the Tribunal must determine are whether the landlord has established grounds to terminate the tenancy and whether the tenant has established grounds for compensation. Analysis
The application is made under section 55A Residential Tenancies Act 1986. That section requires the landlord to give written notices on 3 separate occasions within a 90-day period of anti-social behaviour which is defined in subsection 7 to mean harassment, or any other act or omission that reasonably causes harm, distress, or nuisance that is more than minor.
The test is an objective test, not one to be determined on the basis of the subjective opinion of the landlord or of other tenants.
I am not persuaded that there are grounds for termination.
The obvious fractious relationship between the landlord and the tenant, and between some of the tenants, means that the objective sound assessment by Character Builders Ltd is reliable evidence that carries weight.
The report writer has concluded that with normal use in an interior environment it is unlikely that the tenant’s tools would cause the level of noise intrusion suspected. At most there was some faint audible noise which was not invasive.
Because I find that the anti-social notice regarding noise has not been proved, I need not consider the other notices. All three have to be proved before the Tribunal could terminate the tenancy.
Significant also is Ms Wright’s evidence today that there have been no noise issues since January or February this year when the notices were issued.
Mr Pyne referred to 2 other matters that have arisen since the last Tribunal hearing. One was a text message from Ms Wright referring to a tenant being concerned about him rattling a lock; the other a 14-day notice for an allegation that he used an offensive word to Ms Wright.
Those matters are not before the Tribunal, and I need not address them.
Mr Pyne confirmed that his application was in effect a defence to the matters raised by the landlord, though he appears to mention compensation for harassment, so I will address that.
I am not persuaded to award compensation for harassment. Just because a landlord makes an application against a tenant (even if unsuccessful) does not establish a breach for which compensation should be awarded.
The landlord needs to exercise caution when issuing texts and notices about alleged breaches. Continued communication about such minor irritations as turning a door lock and making a rattling sound might result in a finding of breach of the tenant’s quiet enjoyment. Breaches of quiet enjoyment that amount to harassment can result in an award of exemplary damages in some cases.
The effect of the landlord’s notices to the tenant have resulted in no further complaints of noise since the start of this year. So, in that sense they have achieved their purpose.
For the reasons I have given, based on the independent noise assessment, I find that the anti-social notice for noise coming from the tenant’s use of power tools is not established. The power tool use cannot be found to amount to harassment or noise that caused alarm, distress, or nuisance that is more than minor, objectively viewed. That finding means that the landlord’s application cannot succeed. Result
The application for termination of the tenancy is dismissed.
The tenant’s application is dismissed. Name Suppression
Upon my enquiry, neither party sought a name suppression order.

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The applications are dismissed.

Reasons

Both parties attended the hearing. Ms Wright, Ms Stark and Mr Haines represented the landlord. Background
The landlord has applied to terminate the tenancy based on 3 notices of alleged anti-social behaviour by the tenant.
The tenant has made an application for compensation, and he defends the landlord’s application.
One of the breach notices alleges a drilling noise from the tenant’s unit from the use of power tools. That notice was the focus of the landlord’s application.
I first heard the applications on 29 June 2023. I heard evidence from the parties and from a witness for the landlord.
The degree of distress I observed from the landlord’s witness did not accord with the issue for determination by the Tribunal. I suspect there are broader dynamics as among tenants in the complex where the premises are located.
I adjourned the hearing with a direction that the landlord engage a building practitioner to provide an independent report on the noise produced by the use of the tenant’s power tools. I took that step because the evidence of the parties was so at odds.
The landlord complied with that direction and produced a report by Character Builders Ltd. The report is thorough and addresses all the matters I wanted addressed.
The builder arranged for a colleague to be present with the neighbouring tenant while the tests were conducted.
Because there is mention of some faint audible noise, the landlord submitted that the anti-social notice breach in relation to noise is proved, along with the other breaches, and it still seeks termination of the tenancy. Issues
The issues the Tribunal must determine are whether the landlord has established grounds to terminate the tenancy and whether the tenant has established grounds for compensation. Analysis
The application is made under section 55A Residential Tenancies Act 1986. That section requires the landlord to give written notices on 3 separate occasions within a 90-day period of anti-social behaviour which is defined in subsection 7 to mean harassment, or any other act or omission that reasonably causes harm, distress, or nuisance that is more than minor.
The test is an objective test, not one to be determined on the basis of the subjective opinion of the landlord or of other tenants.
I am not persuaded that there are grounds for termination.
The obvious fractious relationship between the landlord and the tenant, and between some of the tenants, means that the objective sound assessment by Character Builders Ltd is reliable evidence that carries weight.
The report writer has concluded that with normal use in an interior environment it is unlikely that the tenant’s tools would cause the level of noise intrusion suspected. At most there was some faint audible noise which was not invasive.
Because I find that the anti-social notice regarding noise has not been proved, I need not consider the other notices. All three have to be proved before the Tribunal could terminate the tenancy.
Significant also is Ms Wright’s evidence today that there have been no noise issues since January or February this year when the notices were issued.
Mr Pyne referred to 2 other matters that have arisen since the last Tribunal hearing. One was a text message from Ms Wright referring to a tenant being concerned about him rattling a lock; the other a 14-day notice for an allegation that he used an offensive word to Ms Wright.
Those matters are not before the Tribunal, and I need not address them.
Mr Pyne confirmed that his application was in effect a defence to the matters raised by the landlord, though he appears to mention compensation for harassment, so I will address that.
I am not persuaded to award compensation for harassment. Just because a landlord makes an application against a tenant (even if unsuccessful) does not establish a breach for which compensation should be awarded.
The landlord needs to exercise caution when issuing texts and notices about alleged breaches. Continued communication about such minor irritations as turning a door lock and making a rattling sound might result in a finding of breach of the tenant’s quiet enjoyment. Breaches of quiet enjoyment that amount to harassment can result in an award of exemplary damages in some cases.
The effect of the landlord’s notices to the tenant have resulted in no further complaints of noise since the start of this year. So, in that sense they have achieved their purpose.
For the reasons I have given, based on the independent noise assessment, I find that the anti-social notice for noise coming from the tenant’s use of power tools is not established. The power tool use cannot be found to amount to harassment or noise that caused alarm, distress, or nuisance that is more than minor, objectively viewed. That finding means that the landlord’s application cannot succeed. Result
The application for termination of the tenancy is dismissed.
The tenant’s application is dismissed. Name Suppression
Upon my enquiry, neither party sought a name suppression order.

Tenancy Tribunal case 4571189 — Harassment at Unit/Flat 11, 9 Percival Street, Beckenham, Christchurch

At a glance

Tenancy Tribunal case 4571189 — Harassment at Unit/Flat 11, 9 Percival Street, Beckenham, Christchurch

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions