Published tribunal order
Tenancy Tribunal case 4722390 — 14-day notice at Room 5, Unit/Flat B, 80 Manor Place, Dunedin Central,
Decided 13 Dec 2023 · Published 13 Dec 2023 · Application 4722390
Mixed / unclear
- 14-day notice
- Smoke alarms
Order
- The tenancy of Jakob Bell at Room 5, Unit/Flat B, 80 Manor Place, Dunedin Central, Dunedin 9016 is terminated, and possession is granted to Metro Otago Property Management Limited as Agent for Craig & Anissa Phillips, at 5pm on Friday, 16 December 2023.
- Jakob Bell is to pay to Metro Otago Property Management Limited as Agent for Craig & Anissa Phillips the sum of $20.44 (being reimbursement of the filing fee for this application) immediately.
Reasons
- Only the landlord attended the hearing, represented by Mr Sharp.
- Mr Bell occupies a room in a house with four other tenants. Each of the rooms are let separately by the landlord.
- The landlord has applied for termination of the tenancy for breach of Mr Bell’s obligations, and reimbursement of the filing fee for filing this application.
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.
- The landlord says that Mr Bell has been smoking inside (in breach of clause 28 of the Tenancy Agreement) and has been excessively noisy and disruptive in breach of Section 40(2)(c) of the Residential Tenancies Act 1986 (“RTA”).
- Clause 28 of the Tenancy Agreement states that: “28. Smoking and Illegal Substances – The Tenant agrees not to smoke cigarettes, cigars, vaporisers or electronic cigarettes, (recognizing that all can set off smoke alarms) or possess or take illegal substances into the Tenancy Property and not to allow any other occupants, guests, or invitees to do any of the above, or to use the Property in any way for any unlawful purpose.”
- Section 40(2)(c) of the RTA states that the tenant shall not “cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants...”
- At the hearing Mr Sharp explained that the tenancy began on 26 June 2023, and very shortly after, on 4 July 2023, the landlord received a complaint from another tenant in the house about the excessive noise by Mr Bell, saying that he was shouting until the early hours of the morning on a Sunday night.
- There was further complaint of excessive noise (yelling and blasting of music until 3/4am on numerous) from one of the landlord’s other tenants on 9 August 2023. On this occasion that landlord sent a letter to Mr Bell the same day, drawing his attention to Section 40(2)(c) of the RTA and advising that complaints had been received about excessive noise.
- Unfortunately problems continued, which led to the following further complaints and responses by the landlord: a. 2 October 2023: Complaint by another tenant regarding smoking inside; b. 12 October 2023: Letter from Landlord to Mr Bell regarding smoking including 14 day notice; c. 12 October 2023: Complaint by another tenant regarding yelling, swearing slamming doors etc; d. 12 October 2023: Complaint by another (different) tenant regarding yelling, swearing and slamming from 5pm – 2am; e. 12 October 2023: Visit by Mr Sharp following complaints by other tenant, who then found Mr Bell to be disruptive; f. 16 October 2023: Letter from Landlord to Mr Bell regarding excessive noise and including 14 day notice; g. 24 October 2023: Complaint by another tenant regarding smoking, strong smell in house; h. 24 October 2023: Complaint by different tenant confirming issues with smoking; and i. 25 October 2023: Letter from Landlord to Mr Bell regarding smoking including 14 day notice.
- Although the breaches have occurred, and so in a sense cannot be remedied, both the smoking and the excessive noise appear to be patterns of behaviour that could be remedied in the sense that the tenant could stop smoking inside and could stop making excessive noise. The landlord is not technically required to serve 14 day notices when breaches cannot be remedied but the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breaches before it will exercise its discretion to terminate. The landlord has now served three 14 day notices on Mr Bell.
- Regrettably however the issues have continued. Mr Sharp explained that since this claim was filed on 26 October 2023 there have been numerous further correspondence with the other tenants and that the breaches are continuing.
- I am satisfied that Mr Bell is in breach of both clause 28 of the Tenancy Agreement and Section 40(2)(c) of the RTA. There appear to have been numerous instances of smoking inside, and both the smoking and excessive noise have been disturbing the other tenants’ reasonable peace and comfort.
- It is clear from the communication from the tenants that the disturbances caused by the breaches is causing them considerable frustration as there is the smell of smoke throughout the house and they are often kept awake until the early morning by excessive noise.
- It would be inequitable to refuse to terminate the tenancy because of the continuing impact on the landlord’s other tenants. The tenancy is terminated.
- It is unfortunate that Mr Bell was unable to attend the hearing today. Shortly before the hearing he sent a text to Mr Sharp which Mr Sharp read out at the hearing. The text advised that Mr Bell was unable to attend the hearing but that he had found a new place to stay and would be moving out this Friday and would meet with Mr Sharp to sign the bond form and sort out other matters.
- In the circumstances I grant possession back to the landlord at 5pm this Friday, 15 December 2023, Mr Sharp advised that he will attend at the property to do a final inspection and to meet with Mr Bell to discuss end of tenancy matters.
- Because Metro Otago Property Management Limited as Agent for Craig & Anissa Phillips has wholly succeeded with the claim I must reimburse the filing fee.