What was the outcome of Tenancy Tribunal case 4753609?

The tribunal order states: The tenancy of Kellymei Vida Hetaraka at 5A Sterling Street, Otara, Auckland

How much money was awarded in case 4753609?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4753609?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4753609?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9811637-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4753609?

The tribunal order states: The tenancy of Kellymei Vida Hetaraka at 5A Sterling Street, Otara, Auckland

How much money was awarded in case 4753609?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4753609?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4753609?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9811637-Tribunal_Order.pdf.

5A Sterling Street, Otara, Auckland 2025 Tenancy Tribunal Case 4753609 — Rent arrears

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Reasons

Both parties attended the hearing. Antisocial behaviour

The landlord has applied to the Tribunal for an order terminating the periodic tenancy on the grounds of anti-social behaviour from the tenant or someone on the premises with the tenant’s permission.

The landlord states that the anti-social behaviour started around 21 March 2023 when the landlord received the initial complaints from neighbours and other tenants of the landlord about a serious physical altercation and loud argument with a male person outside the property at approximately 12am. Video footage received from a witness showed the tenant and an unknown male person in a loud and ongoing verbal argument and physical scuffle with pushing and swearing. The tenant was holding what appears to the landlord as a hammer and threw it at a blue vehicle, which smashed its back windscreen. The Police were called and attended the property. Subsequently, the landlord received multiple complaints from various neighbours who were traumatised to hear and witness this altercation and who had young children that could hear the violence unfolding outside where they live.

On 29 March 2023, a request was sent by the landlord to meet with the tenant to discuss the issue, but the tenant came up with multiple reasons not meet with the landlord to discuss the matter and consider ways to cease the tenant’s breach of clauses 16 and 17 of her tenancy agreement to be respectful of her neighbours peace, comfort and privacy.

On 12 June 2023, the landlord issued the first notice under s55A of the RTA. The notice for anti-social behaviour related to the 21 March 2023 incident.

On 14 August 2023, video footage was received along with multiple complaints from neighbours about an incident on 13 August 2023 where the tenant’s ex- partner was attacked by five people. The video evidence shows a prolonged attack on the male and includes the tenant’s voice being heard to yell “kill him”. The video shows the attack occurred near neighbouring properties and there are video recordings of the attack from multiple angles. This incident caused significant alarm and distress to the tenant’s neighbours who witnessed and recorded the incident and passed the information to Police.

On 14 August 2023 the landlord requested a meeting with the tenant to discuss the incident and hear her explanation to the video evidence and complaints. A meeting took place on 16 August 2023 at the landlord’s offices. The tenant attended the meeting with her uncle. She denied any involvement in the recorded incident and did not accept the impact this disruptive behaviour was having on others around her. She denied being involved in this incident again at the hearing and stated that her ex-partner and a number of gang affiliates had come to her home to beat her up during her father’s birthday celebration and that she had called the Police who only arrived after the ex-partner had beaten her and left. She stated she had victim impact statements that confirmed her version of events, but no charges had been laid as the Police could not locate her ex-partner and associates to investigate her claims. However, the landlord has produced video evidence that suggests the tenant’s recollection of the events of that day may not be as accurate as she claims. On the balance of probabilities, I prefer the video and witness statement evidence provided by the landlord over the verbal evidence provided by the tenant during the hearing.

Due to the 90-day time frame limits, another first s55A notice was issued to the tenant on 22 August 2023 for 14 August 2023 anti-social behaviour and breaches of clauses 16 and 17 of her tenancy agreement.

On 28 August 2023, another incident was witnessed by several neighbours between the tenant and a male. They were engaged in a loud verbal altercation where the tenant could be heard screaming “fuck you”, “get the fuck off my property” and other obscenities. The neighbours observed the male in his underwear yelling and pacing up and down the driveway in an agitated state. The Police were called to attend the property as the pair seemed to the neighbours to be escalating into further violence and the male was indecent and in the view of neighbouring children. A welfare check on the tenant was attempted on 4 September 2023 by a Senior Housing Support Manager. The Senior Housing Support Manager was unsuccessful at making contact with the tenant but kept trying as the landlord was concerned for her safety and wellbeing. Eventually the tenant responded to the Senior Housing Support Manager by text denying any involvement in the 28 August 2023 incident. The incident was videoed by neighbours and shows that the version of events stated above are correct even though the tenant’s recollection of this event differs somewhat. She stated at the hearing that her uncle had been notified that the tenants sister had died and he was pacing outside the premises in an agitated state as he didn’t know how he was going to break the news to her. She does however acknowledge that the incident was loud and did disturb the peace, comfort and enjoyment of the neighbours in the neighbouring properties, including another of the landlord’s tenants. She felt the neighbours should have been more considerate as she was expressing her grief as was her uncle.

On 14 September 2023, a second s55A notice was issued to the tenant for the 28 August 2023 altercation.

On 16 August 2023, a further verbal argument was witnessed between the tenant and her uncle at around 8:05am. The neighbours in their witness statement allege that the tenant presented at the front door of her property with a hammer and was yelling and screaming at her uncle and that she smashed his back vehicle window with the hammer. The Police were called again to the property and had to attend the property twice on that day for a further altercation. The Police advised that when they interviewed the tenant, she denied being the one in possession of the hammer and that it was her uncle and not her that smashed the car window. At the hearing, the tenant again denied that she had smashed the window of the vehicle and stated that her uncle has in advertently caused the damage to the car window by accident. She also denied yelling and screaming at her uncle. Further she said that while her neighbour’s could hear the alleged disturbances she could not understand how they could see, witness and video the violent altercations without hanging over her back deck. On the balance of probabilities I find that the witness statements provided by the landlord to be more likely to accurately record the events as they happened than that of the tenant, who claimed the matter was an accident her uncle had and she called out to see if he was ok, he was visibly upset about the damage he had caused to his own vehicle and she went out on the street to comfort him. Even if this was the case, the loud yelling and screaming and breaking of car windows did disturb the peace, comfort and enjoyment of the neighbouring properties, including other tenants of the landlord. The uncle was a person that the tenant was responsible for that was at the rental premise.

The third s55A notice was issued to the tenant on 8 November 2023 in relation to the 16 October 2023 incident.

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; c. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.

The Act confirms that antisocial behaviour includes harassment or any act (whether intentional or not) that reasonably causes alarm, distress or nuisance that is more than minor.

I have considered the evidence presented by the parties as set out above.

I have determined that the landlord has established that anti-social behaviour has occurred on the premises by the tenant or a person on the tenancy with the tenant’s permission. The landlord has served notices on the tenant as required in the Residential Tenancies Act 1986, and the application to the Tribunal was made within 28 days of the date of the third notice.

I consider it would not be unfair to terminate the tenancy taking into account the circumstances in which the behaviour arose and the notices were given. 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. Unlawful entry

During the hearing Kellymei Vida Hetaraka claimed the landlord entered the premises without her consent or notice.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

The tenant had not included this claim or any of the details or evidence related to this claim in her cross application. By consent, I investigated into this claim but the tenant had not produced any evidence, other than her oral and rather vague evidence, about tradesmen entering her home without notice or consent on 23 January 2023, 24 January 2023, 15 March 2023 and 14 April 2023. No times or details were provided, and the landlord was unable to find any record of these visits in the record it had to hand during the hearing. It was agreed that the tenant needed to submit a separate application for this claim with more detailed evidence so the landlord could investigate more fully and respond to these allegations. The tenant agreed that she would find and submit such evidence with a new application to the Tribunal. Harassment

Kellymei Vida Hetaraka claims the landlord has harassed her.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.

The tenant produced a series of text messages, pictures of the Housing Manager’s car in her driveway and oral accounts of Housing Support Managers trying to contact her by text, by letter dropped to her letterbox or by knocking at the door to speak to her or hand deliver letter about s55A breaches, rent arrears, doing welfare checks after incidents and following up her collecting privacy documents she had requested from the landlord’s office. I found nothing unusual in the frequency or nature of the communications described by the tenant or produced in evidence by the tenant. The tenant failed to prove her claim and therefore this harassment claim is dismissed.