What was the outcome of Tenancy Tribunal case 4713009?

The tribunal order states: The tenancy of Jay Pourau at 15 Ferndown Close, Brookfield, Tauranga 3110 is

How much money was awarded in case 4713009?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4713009?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 4713009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9574118-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4713009?

The tribunal order states: The tenancy of Jay Pourau at 15 Ferndown Close, Brookfield, Tauranga 3110 is

How much money was awarded in case 4713009?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4713009?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 4713009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9574118-Tenancy_Tribunal_Order.pdf.

15 Ferndown Close, Brookfield, Tauranga 3110 Tenancy Tribunal Case 4713009 — Harassment

Order

The tenancy of Jay Pourau at 15 Ferndown Close, Brookfield, Tauranga 3110 is terminated, and possession is granted to Eves Realty Group Limited As Agent For IDS Investments Limited, at 11.59pm on Monday 30 October 2023.
Jay Pourau must pay Eves Realty Group Limited As Agent For IDS Investments Limited $20.44 immediately, being reimbursement of the filing fee.

Reasons

Ms Hart attended the hearing on behalf of the owner (the Landlord). She was accompanied by Kurt Smith, another property manager and another colleague as a support person. Mr Pourau also attended. The hearing took place by telephone.
The landlord seeks termination of the tenancy relating to anti-social behaviour. The landlord confirmed at the hearing that its application relied solely on three notices relating to alleged anti-social behaviour.
The tenant is Mr Pourau, he lives at the property with his partner (A) and children.
In relation to the anti-social behaviour these notices set out: a. 24 July 2023 – Aggressive arguing audible to neighbours at [address] at around 10am on 24 July 2023 (notice 1). b. 3 October 2023 – Guests arguing resulting in the police being called to the address on 13 September AM. A police number is quoted (Notice 2). c. 12 October 2023 – Loud arguments in driveway, assault of a female in view of neighbours in a car parked on driveway, repeated threats and attempted break into neighbouring property. A police number is quoted and the date of the behaviour is said to be 12 October 2023 at around 6- 8am (Notice 3).
I heard oral evidence from two witnesses. In this decision I will call those witnesses J and L. L and J are neighbours of the tenant. The landlord also filed a written statements from L and J. Notice 1
The landlord’s position, supported by L’s oral and written evidence, is that upon returning home she could hear screaming and yelling from the property. L tried to see what was happening but then A then started screaming at her using swear words. A was yelling about L being the cause of them getting kicked out of their house. The neighbour says it was intimidating and she would not stop. The tenant and A were on their deck at this time. L says that once A had calmed down the tenant carried on the abuse. The neighbour explained that she then called the property manager about this at the time and also called the police.
She says it was loud, scary and threatening. She says in total it lasted about an hour and she needed to have a friend come over to support her. L says that the police asked A to leave for a few days and the property manager also came over and spoke to the tenant. L says that the shouting started again while the property manager was still there and the discussion with the tenant had no impact. L says the anti-social behaviour is constant. The landlord provided a copy of a police report dated 24 July 2023. It refers to speaking threateningly.
Initially the tenant said he could not recall this occasion but after repeating the allegation to him the tenant admitted that there had been yelling but says ‘we are trying to sort us out as well’. He says yelling is also sometimes to control their young children who he says do not listen. He says the neighbour was looking at them and she is constantly watching them. He says he did not think the police were called on this occasion time. He says there have been numerous police calls so he cannot recall. Notice 2
In her oral evidence J described two incidents on 13 September 2023. The first incident is also described in an email to the landlord provided to the Tribunal on the same date, saying that she has rung the police again because ‘the neighbours are bashing each other’.
J says she could hear fighting from two people inside the property. J says it was A’s brother (X) and X’s girlfriend. J says that arguing is frequent and sometimes it would go on for sometimes hours or sometimes just half an hour. J says that the police did come. She was going to get a trespass order but the police suggested this was not a good idea because then those involved would know she had reported the incident. J also referred to a second incident later on that day when the tenant returned and was having an argument with X that lasted between 5 and 10 minutes.
The tenant initially took the position that he could not remember this incident but after hearing further evidence he recalled that he was at work that day. He says he had many missed calls from the property manager. He was oblivious to what was happening because he was at work and could not answer his telephone. He says he had tried to get the police report from the police but had not yet been successful. Later in that day he says he had ‘growled’ at X telling him not to have further arguments and then an argument between X and the tenant took place. He says that X was staying there for a few weeks due to damage to his home but the tenant says he had over stayed his welcome. Notice 3
On this occasion L’s evidence was that she woke up at 7am to screaming and aggressive yelling. X was ‘beating up’ A in the driveway. L says this continued for a while. L called the police. L says that A and the tenant left and then X turned his attention to L banging and kicking her doors, threatening her with a skateboard and also kicking and damaging a fence. L says this part of the incident lasted about a good 30 minutes and the whole incident lasted from 7am to 7.50am when the police turned up. L says that she rang the police and initially no one came. She rang again and they did come and handcuff X. L says that the incident lasted about an hour – ending at about 7.50am.
The tenant does not deny that there was an incident. He says that X had returned to the property to collect his things but then started to ‘lose it’ and had assaulted both the tenant and A inside – he had started punching them. The tenant says that X was told to go but he carried on. The tenant says his focus was trying to get away from the house and getting his children and A in the car. Analysis and law
Section 55A, Residential Tenancies Act 1986 (RTA) sets out that subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied: a. on 3 separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission, engaged in anti-social behaviour in connection with the tenancy; and b. on each occasion the landlord gave the tenant written notice— i. describing clearly which specific behaviour was considered to be anti- social and (if known to the landlord) who engaged in it; and ii. advising the tenant of the date, approximate time, and location of the behaviour; and iii. stating how many other notices (if any) the landlord has given the tenant under this paragraph in connection with the same tenancy and the same 90-day period; and iv. advising the tenant of the tenant’s right to make an application to the Tribunal challenging the notice and; v. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.
The Act confirms (s55A(7), RTA) that antisocial behaviour includes harassment or any act (whether intentional or not) that reasonably causes significant alarm, distress or nuisance.
If a tenant is in the premises at the same time as another person (other than the landlord or a person acting on the landlord’s behalf or with the landlord’s authority), the tenant is presumed to have permitted the person to be in the premises unless the tenant proves that they took all reasonable steps to prevent the person from entering the premises or to eject the person from the premises. (s 55A(5), RTA).
I find that landlord has proven that the tenant and A, who was at the property with the tenant’s permission, were yelling so that it could be heard by the neighbour (notice 1). In fact, that arguing then became directed at the neighbour. Prolonged periods of yelling between occupants of a property audible to neighbours and abusive yelling directed to a neighbour to the extent that both the police and property manager attend is anti-social behaviour.
I find that X was at the property with the tenant’s permission on 13 September (notice 2) and therefore the tenant is responsible for that behaviour. I accept that yelling to the extent that neighbours are concerned to call the police, who then attend, is anti-social behaviour.
Turning to the third notice, there is no dispute that A was being ‘beaten up’ by X. The tenant was also at the property at the time. This incident also involved aggressive yelling and screaming.
I am satisfied that A, who was at the premises with the tenant’s permission, was engaged in anti-social behaviour with X on the driveway and this alone is sufficient to establish that someone who had the tenant’s permission to be on the property engaged in anti-social behaviour.
In any event, I am satisfied that X was permitted by the tenant to be on the premises at the time the tenant while he was there. This is because the tenant has not satisfied me that he made all reasonable efforts to eject X from the premises (premises includes land (s2, RTA)). There was no suggestion, for example, that the tenant called the police to get him removed. Instead, knowing X remained, the tenant left.
I find that the subsequent actions of X are sufficient to establish that he engaged in anti-social behaviour in connection with the tenancy. The phrase, ‘in connection with the tenancy’ is not defined by the RTA but I consider X’s actions are sufficiently connected to the tenancy because he was attending to collect his things having lived there for a period of time, he directed further anti- social behaviour at a neighbour and he returned to the tenancy address to get the skateboard.
The Landlord has served notices on the tenant as required in the RTA, and the application to the Tribunal was made within 28 days of the date of the third notice. Every notice informed the tenant of his right to challenge the notice by making an application with the Tenancy Tribunal. No such applications were made in respect of any of the anti-social behaviour notices.
I must consider if it would be unfair to terminate the tenancy given the circumstances in which the behaviour arose, and the notices that were given. I have given this careful consideration to this particularly given the involvement of a family member. However, I consider it would not be unfair to terminate the tenancy.
This is because I heard evidence that the neighbours had struggled with problems arising from the tenancy from the start. The police have been contacted on several occasions. The tenant admits to the fact the neighbours would hear yelling (either at the children or because he and A are trying to work things out). The tenant also admits that the occasions that the police have been called are multiple, to the extent that he found it hard to recall which occasion was being relied upon. Further, in an unrelated event, it was not disputed that an incident had occurred whereby L’s son had also been threatened by X while he was staying at the property. The tenant attempted to justify this by saying the son had put his head over the fence but I do not accept this being an acceptable excuse for threats of violence.
The tenant says that there wouldn’t be problems if the neighbours were not nosy. However, it will be difficult for neighbours to ignore yelling and other anti- social behaviour as this would interfere with the neighbour’s reasonable peace, comfort, or privacy. Further, domestic disputes should not be simply ignored. Finally, the landlord had also issued earlier warnings as well as spoken to the tenant directly about the behaviour.
I cannot see that the Landlord has acted in any retaliatory way in bringing this application.
I cannot consider the impact on the tenant, in making an order for termination of the tenancy.
The tenancy is terminated at 11.59pm on Monday 30 October 2023. Suppression and filing fee
I have awarded the landlord the filing fee as it has been wholly successful.
The tenant requested I consider name suppression. I have not awarded this. The tenant has not been substantially successful and there are no other reasons to award suppression (s 95A RTA). The landlord did not seek suppression.

Tenancy Tribunal case 4713009 — Harassment at 15 Ferndown Close, Brookfield, Tauranga 3110

At a glance

Tenancy Tribunal case 4713009 — Harassment at 15 Ferndown Close, Brookfield, Tauranga 3110

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