What was the outcome of Tenancy Tribunal case 4671349?

The tribunal order states: The tenancy of Michael Smith at Unit/Flat 1, 46 Murray Street, Bell Block, New

How much money was awarded in case 4671349?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4671349?

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

Where can I read the official tribunal order for case 4671349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9557733-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4671349?

The tribunal order states: The tenancy of Michael Smith at Unit/Flat 1, 46 Murray Street, Bell Block, New

How much money was awarded in case 4671349?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4671349?

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

Where can I read the official tribunal order for case 4671349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9557733-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 46 Murray Street, Bell Block, New Plymouth Tenancy Tribunal Case 4671349 — 14-day notice

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Order

The tenancy of Michael Smith at Unit/Flat 1, 46 Murray Street, Bell Block, New Plymouth 4312 is terminated, and possession is granted to Andy Westrupp, Suzanne Fincham, Melvin Fincham, David Bateman, Lorraine LePine, Gerry Walker as trustees of The Salvation Army New Zealand Trust at 11.59pm on Tuesday 31 October 2023.

Michael Smith must pay The Salvation Army New Zealand Trust $20.44 immediately, being the filing fee.

Reasons

Only the landlord attended the hearing. The tenant did not attend. I am satisfied that the tenant has been served and has notice of the hearing and so the hearing proceeded in his absence.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

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.

Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.

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 says that the tenant has breached their obligations by smoking inside causing damage to the property and that smoking inside is a breach of a clause in the tenancy agreement. The landlord also says that the tenant has failed to keep the property reasonably clean and tidy.

Most recently the landlord served a 14-day notice on the tenant dated 11 August 2023. This related to smoking and cleaning.

The landlord says that smoking inside has been an ongoing issue in this tenancy. The landlord provided evidence that the tenant has also been given 14-day notices in relation to smoking on 17 April 2023, 1 May 2023, 2 December 2022, 16 November 2022, 1 November 2022 and 4 May 2022.

I heard witness evidence from Ms Burnell, the tenant’s, tenancy manager. She says that each 14-day notice was issued following discussions with the tenant about smoking inside. After each notice she says the smoking position remained the same. There was no change with the ashtray generally being in the same position.

More recently, in relation to the latest 14-day notice, Ms Burnell says that on her inspection she saw smoke in the air, could smell smoke on the approach, saw an ashtray in the kitchen and the property smelt of smoke throughout. She says that she discussed smoking inside with the tenant again and told him he was only allowed to smoke outside. She asked him if he was smoking inside and she says he replied yes. When she told him he was not allowed to do that he got aggressive. Her tenancy report dated 7 August 2023 observes: ‘smoking inside... stinks of cigarette smoke’.

An earlier property inspection report from May 2023 records ‘Cigarette smoke....stinks & ashtray inside’.

Ms Burnell says that despite the number of 14-day notices given there has been no effort to change by the tenant. Things have got worse not better. She says the smoking inside is damaging the walls which are ‘quite black’ and it is starting to seep into surfaces like carpet and walls.

I also heard concerns that other tenants in the ‘Salvation Army Village’, where this tenant lives (consisting of nine units), would start to wonder why the tenant was able to smoke inside when they could not.

Ms Burnell says that on her return visit on 25 August 2023 there was no change – the ashtray remained as did the smoke inside and the smell. The tenant was aggressive when questioned about it.

I find that the tenant has breached his obligations by continuing to smoke inside the house. I accept the landlord’s evidence that damage has occurred due to smell and/or discolouration.

The tenant did not remedy the breach within the required period as set out in the notice dated 11 August 2023.

In any event, the breach was not remedied within the periods set out in the earlier 14-day notices either.

Further, and in any event, I consider that the breach is not capable of remedy because despite the continued requests to stop smoking insider the tenant has continued to smoke inside the house for a prolonged period of time.

I find that it would be inequitable to refuse to terminate the tenancy because: a. The landlord has attempted to discuss matters face to face with the tenant but there remains no change; b. The landlord has issued multiple 14-day notices about smoking; c. The tenant has not made an effort to change his behaviour; and d. I accept that further damage will continue to occur if the property continues to be exposed to cigarette smoke.

The landlord also referred specifically to the kitchen, the oven, and the bathroom in relation to the cleanliness of the property. I do not need to consider this further as the above is sufficient to terminate the tenancy.

The tenancy is terminated.

I have given the tenant until 11.59pm on Tuesday 31 October 2023 to remain in the property. Given that the situation has been ongoing for some time I consider that allowing the tenant a further week to leave will not prejudice the landlord and will give the tenant an opportunity to find somewhere else to live. Rent must still be paid for this period.

Because The Salvation Army New Zealand Trust has wholly succeeded with the claim I must reimburse the filing fee.

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

Order

Michael Smith must pay The Salvation Army New Zealand Trust $20.44 immediately, being the filing fee.

Reasons

Only the landlord attended the hearing. The tenant did not attend. I am satisfied that the tenant has been served and has notice of the hearing and so the hearing proceeded in his absence.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

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.

Most recently the landlord served a 14-day notice on the tenant dated 11 August 2023. This related to smoking and cleaning.

An earlier property inspection report from May 2023 records ‘Cigarette smoke....stinks & ashtray inside’.

Ms Burnell says that on her return visit on 25 August 2023 there was no change – the ashtray remained as did the smoke inside and the smell. The tenant was aggressive when questioned about it.

I find that the tenant has breached his obligations by continuing to smoke inside the house. I accept the landlord’s evidence that damage has occurred due to smell and/or discolouration.

The tenant did not remedy the breach within the required period as set out in the notice dated 11 August 2023.

In any event, the breach was not remedied within the periods set out in the earlier 14-day notices either.

The tenancy is terminated.

Because The Salvation Army New Zealand Trust has wholly succeeded with the claim I must reimburse the filing fee.

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

Tenancy Tribunal case 4671349 — 14-day notice at Unit/Flat 1, 46 Murray Street, Bell Block, New Plymouth

At a glance

Tenancy Tribunal case 4671349 — 14-day notice at Unit/Flat 1, 46 Murray Street, Bell Block, New Plymouth

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