Published tribunal order
Tenancy Tribunal case 4675869 — 14-day notice at Unit/Flat 2, 17 Rodney Street, Otahuhu, Auckland 1062
Decided 20 Dec 2023 · Published 20 Dec 2023 · Application 4675869
Dismissed
- 14-day notice
Order
- The landlord’s application is dismissed.
- Reremoana Masters-Pirihi will pay The Rent Ship Limited as Agent for Toni Beck the sum of $20.44 immediately, for the filing fee.
Reasons
- Both parties attended the telephone hearings on 26 September 2023 and 14 December 2023. The first hearing was adjourned to enable the landlord to request a Police report. The parties also filed further documents following the second hearing. The landlord’s application
- The landlord (through the property manager) applied for termination of the tenancy for assault on 25 August 2023.
- Section 55(1)(c) of the Residential Tenancies Act 1986 (the Act) provides that the Tribunal shall terminate a tenancy if the Tribunal is satisfied that the tenant has assaulted, or has threatened to assault, the landlord, the landlord’s family, or an agent of the landlord.
- To the Tribunal’s knowledge, no charges have been filed and therefore section 55AA of the Act does not apply.
- The tenant’s son-in-law, who I will call Mr R, admits he slapped the landlord while the landlord was at the property doing electrical maintenance work. The son-in- law, however, says that the landlord also verbally abused and assaulted him, and this is what provoked the incident. This is supported by the tenant, who says she saw the two men fighting and the landlord had Mr R in a headlock. The landlord denies assaulting Mr R.
- The landlord and son-in-law’s evidence about what happened was similar in many material respects. The general outlines and some of the details of the incident were the same. Where they mainly differed was whether the landlord assaulted Mr R after their initial verbal confrontation outside the property. The son-in-law says he started cursing the landlord in response to the landlord’s verbal challenge and the landlord put him in a choke hold. The landlord says he walked away from the verbal abuse.
- There was a subsequent altercation after the landlord walked back to his van and was followed by the son-in-law, who kicked the landlord’s step ladder. The landlord told Mr R not to touch his steps again or he would slap him, at which point Mr R admits he slapped the landlord. This caused a minor internal cut to the landlord’s cheek, but he did not need medical assistance.
- While giving evidence, the son-in-law said the Police were called and attended at the tenancy address following the incident. He said he called the landlord to ask him if he was going to come back because the Police were there. The landlord said Mr R called him and continued the verbal abuse. Mr R also texted the landlord saying he needed to come back and “face what you started”.
- The property manager says the Police have not been able to locate any record of a call-out or attendance at the property on that day. The tenant says an officer did attend (they were able to identify the officer by name) and spoke to Mr R. It has not been possible for the tenant to obtain a record of this to confirm the timing of the Police attendance, which may have been at a later date. Analysis
- The tenant submits that it was not the tenant who assaulted the landlord but a member of her family, so that section 55(1)(c) does not apply. However, in my view, section 41(1) of the Act extends the tenant’s responsibility to the actions of visitors.
- The tenant also submits that termination of the tenancy would be a disproportionate response in the circumstances. Notwithstanding the wording of section 55(1)(c) of the Act (“the Tribunal shall...make an order terminating the tenancy...if satisfied that [the tenant has assaulted the landlord]”) I consider the Tribunal always has an element of discretion. This flows from section 85(2) of the Act, which requires the Tribunal to determine each dispute “according to the general principles of the law relating to the matter and the substantial merits and justice of the case”. The Tribunal is not compelled to terminate a tenancy if there are countervailing factors that would make it unjust.
- I find on the balance of probabilities that the tenant’s son-in-law assaulted the landlord or an agent of the landlord on the property. I find as a matter of law that the tenant is responsible for his actions.
- The landlord did threaten to slap the son-in-law and may also have assaulted him, but whether he provoked what happened or not, I do not view it as a decisive factor when considering whether to terminate. Mr R may have mistakenly stated that the Police attended following the incident, but even if he did, this detail alone does not detract greatly from his credibility as a witness. He frankly accepted that he kicked the landlord’s ladder and slapped him.
- The important factual matter, in my opinion, is that the tenant did nothing to encourage or condone her son-in-law’s actions. The tenant explained that her response to what she saw was to go and check on her grandchildren. She did not start the altercation and, apart from asking the landlord to stop, she did not involve herself in it. There are character references on file which indicate the tenant is a person of good standing and active in her community. My concern is that it would be substantially unjust to terminate her tenancy because of the actions of her son-in-law on one occasion. The tenant was essentially a passive bystander.
- At the same time, the landlord is entitled to give notice pursuant to the Act and to enter the property to perform maintenance without fear of being verbally or physically abused. If this were to occur more than once, the Tribunal’s discretion would likely have to be exercised in favour of terminating the tenancy.
- I understood that the property is part of a block of units owned by the landlord who performs some of the maintenance himself. It is therefore difficult to modify the landlord’s maintenance obligations in a way that would ensure there can be no further incidents of this kind (for example, a condition that the landlord need not perform maintenance if the son-in-law is present).
- I can only encourage the parties to keep their distance and urge the tenant to ensure the landlord can perform maintenance without interference. The tenant assured me that there is no ill-will on her part towards the landlord, and that her son-in-law will not be permitted on the property when the landlord attends. I accept and place reliance on both assurances.
- I exercise my discretion not to terminate the tenancy. The landlord’s application must therefore be dismissed. Suppression and filing fee
- Neither party requested suppression.
- The landlord’s application has been dismissed, but the landlord did establish an assault in breach of the Act and there were grounds for termination. I award the filing fee.