What was the outcome of Tenancy Tribunal case 4799811?

The tribunal order states: The tenancy of Dara McLean and Chercara Mihinui at 55 Harbour View Road,

How much money was awarded in case 4799811?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4799811?

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

Where can I read the official tribunal order for case 4799811?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10013106-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4799811?

The tribunal order states: The tenancy of Dara McLean and Chercara Mihinui at 55 Harbour View Road,

How much money was awarded in case 4799811?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4799811?

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

Where can I read the official tribunal order for case 4799811?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10013106-Tenancy_Tribunal_Order.pdf.

55 Harbour View Road, Omokoroa 3114 Tenancy Tribunal Case 4799811 — 14-day notice

Order

The tenancy of Dara McLean and Chercara Mihinui at 55 Harbour View Road, Omokoroa 3114 is terminated, and possession is granted to Paul Manning and Trudy Yule, at 5pm on Tuesday, 27 February 2024
Dara McLean and Chercara Mihinui must pay Paul Manning and Trudy Yule $20.44 being the filing fee on this application.

Reasons

The landlords attended a hearing by telephone. The tenants did not attend. I attempted to contact the tenants multiple times during the hearing but the calls were not answered. Termination – Anti-Social Behaviour Notices
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 is: a. Creating disturbances in the early hours of 1 January 2024 and throughout the first week of January – 1 st notice - issued 23 January 2024 b. Engaging in burnouts on 1 January and in the first week of January 2024 – 2 nd notice – issued 23 January 2024 c. Attempting to enter neighbour’s premises at night, being on neighbour’s premises while engaged in an altercation with another person on 5 February 2024 – 3 rd notice – issued on 5 February 2024 d. Creating a disturbance in the neighbourhood on 30 December 2024 – 4 th notice - issued on 5 February 2024
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. See s55A Residential Tenancies Act 1986.
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 am not satisfied that the landlord has served notices on the tenant as required by the Residential Tenancies Act.
The landlord served four anti-social behaviour notices on the tenant. Two were served on 23 January 2023 and related to overlapping incidents. The other two were served on 5 February and related to different incidents, one of which pre- dated the start of the 90-day period referred to in the first notice. In Airedale Property Trust v Lawson [2021] NZTT Auckland 4301453 the Tribunal stated: “The purpose of being delivered a notice which expressly sets out the requirements in s55A(2)(b) is so the tenant has the ability to apply to the Tribunal for orders challenging the notice or to otherwise seek to correct the alleged anti-social behaviour. Otherwise, a landlord could deliver three notices on the same day, for three separate earlier events, all taking place on different days, and the tenant has had no opportunity to correct their behaviour I am of the view the tenant did not have the effective right to challenge the fourth notice before the fifth notice was delivered. I therefore find that it would be unfair to terminate under s 55A, given two of the three required notices were delivered on the same date.”
Similarly, in this case, the tenant did not have the effective right to challenge the first notice, before the second was issued. Nor did it have the effective right to challenge the third notice before the fourth was issued.
The behaviour described of in the notices two and three did not occur on the premises. In Oaks Property Management Limited v Tenant [2022] NZTT 4345545 the Tribunal noted, in relation to an anti-social behaviour notice for alleged burnouts: “The burnouts and cars driving fast did not occur in the premises. Section 55 makes it clear that the tenant is only responsible for antisocial behaviour that occurs on the tenant’s premises.”
The landlord has not established that the tenancy should be terminated under s55A. Should the tenancy be terminated for breach of the tenant’s obligations?
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 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 tenant has breached their obligations by causing or permitting interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. See section 40(2)(c) Residential Tenancies Act 1986.
The landlord referred to numerous complaints it has received from neighbours regarding this tenancy and provided some documentary evidence of those complaints. The evidence ranged from use of bad language to threatening behaviour, burnouts on the street and attempting to enter a neighbouring property.
The landlord has the onus of proving its allegations to the required civil standard. As the Tribunal notes in Oaks Property Management Limited v Tenant [2022] NZTT 4345545: “If the tenant’s neighbours are concerned about behaviour, they would be best to contact the police or noise control immediately, who can investigate the behaviour and complaints. Neighbours who then report to landlords need to be specific about the type of behaviour, when it occurred and who did it, and also be aware that the landlord has the burden of proof of proving that the tenant is engaging in any antisocial behaviour, this may mean that the neighbours will be called upon to give evidence or should provide any documentary evidence such as photographs or video recordings to the landlord. A landlord who is unable to meet the evidential burden will not be able to prove their claim.”
I heard oral evidence from two neighbours who had witnessed the alleged behaviour by the tenants or people at the tenancy premises. The evidence was given separately, but was consistent, regarding offensive language, fighting, burnouts and other disturbances in the neighbourhood. Both also referred to Police attendances at the property.
The breach is not capable of remedy because the effect of the disturbances cannot be undone. The witnesses spoke of being fearful for themselves and their neighbourhood.
It would be inequitable to refuse to terminate the tenancy because of the impact this behaviour has had on the neighbourhood.
As the landlord was the successful party, I have awarded reimbursement of the Tribunal application fee.

Order

The tenancy of Dara McLean and Chercara Mihinui at 55 Harbour View Road, Omokoroa 3114 is terminated, and possession is granted to Paul Manning and Trudy Yule, at 5pm on Tuesday, 27 February 2024
Dara McLean and Chercara Mihinui must pay Paul Manning and Trudy Yule $20.44 being the filing fee on this application.

Reasons

The landlords attended a hearing by telephone. The tenants did not attend. I attempted to contact the tenants multiple times during the hearing but the calls were not answered. Termination – Anti-Social Behaviour Notices
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 is: a. Creating disturbances in the early hours of 1 January 2024 and throughout the first week of January – 1 st notice - issued 23 January 2024 b. Engaging in burnouts on 1 January and in the first week of January 2024 – 2 nd notice – issued 23 January 2024 c. Attempting to enter neighbour’s premises at night, being on neighbour’s premises while engaged in an altercation with another person on 5 February 2024 – 3 rd notice – issued on 5 February 2024 d. Creating a disturbance in the neighbourhood on 30 December 2024 – 4 th notice - issued on 5 February 2024
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. See s55A Residential Tenancies Act 1986.
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 am not satisfied that the landlord has served notices on the tenant as required by the Residential Tenancies Act.
The landlord served four anti-social behaviour notices on the tenant. Two were served on 23 January 2023 and related to overlapping incidents. The other two were served on 5 February and related to different incidents, one of which pre- dated the start of the 90-day period referred to in the first notice. In Airedale Property Trust v Lawson [2021] NZTT Auckland 4301453 the Tribunal stated: “The purpose of being delivered a notice which expressly sets out the requirements in s55A(2)(b) is so the tenant has the ability to apply to the Tribunal for orders challenging the notice or to otherwise seek to correct the alleged anti-social behaviour. Otherwise, a landlord could deliver three notices on the same day, for three separate earlier events, all taking place on different days, and the tenant has had no opportunity to correct their behaviour I am of the view the tenant did not have the effective right to challenge the fourth notice before the fifth notice was delivered. I therefore find that it would be unfair to terminate under s 55A, given two of the three required notices were delivered on the same date.”
Similarly, in this case, the tenant did not have the effective right to challenge the first notice, before the second was issued. Nor did it have the effective right to challenge the third notice before the fourth was issued.
The behaviour described of in the notices two and three did not occur on the premises. In Oaks Property Management Limited v Tenant [2022] NZTT 4345545 the Tribunal noted, in relation to an anti-social behaviour notice for alleged burnouts: “The burnouts and cars driving fast did not occur in the premises. Section 55 makes it clear that the tenant is only responsible for antisocial behaviour that occurs on the tenant’s premises.”
The landlord has not established that the tenancy should be terminated under s55A. Should the tenancy be terminated for breach of the tenant’s obligations?
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 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 tenant has breached their obligations by causing or permitting interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. See section 40(2)(c) Residential Tenancies Act 1986.
The landlord referred to numerous complaints it has received from neighbours regarding this tenancy and provided some documentary evidence of those complaints. The evidence ranged from use of bad language to threatening behaviour, burnouts on the street and attempting to enter a neighbouring property.
The landlord has the onus of proving its allegations to the required civil standard. As the Tribunal notes in Oaks Property Management Limited v Tenant [2022] NZTT 4345545: “If the tenant’s neighbours are concerned about behaviour, they would be best to contact the police or noise control immediately, who can investigate the behaviour and complaints. Neighbours who then report to landlords need to be specific about the type of behaviour, when it occurred and who did it, and also be aware that the landlord has the burden of proof of proving that the tenant is engaging in any antisocial behaviour, this may mean that the neighbours will be called upon to give evidence or should provide any documentary evidence such as photographs or video recordings to the landlord. A landlord who is unable to meet the evidential burden will not be able to prove their claim.”
I heard oral evidence from two neighbours who had witnessed the alleged behaviour by the tenants or people at the tenancy premises. The evidence was given separately, but was consistent, regarding offensive language, fighting, burnouts and other disturbances in the neighbourhood. Both also referred to Police attendances at the property.
The breach is not capable of remedy because the effect of the disturbances cannot be undone. The witnesses spoke of being fearful for themselves and their neighbourhood.
It would be inequitable to refuse to terminate the tenancy because of the impact this behaviour has had on the neighbourhood.
As the landlord was the successful party, I have awarded reimbursement of the Tribunal application fee.

Tenancy Tribunal case 4799811 — 14-day notice at 55 Harbour View Road, Omokoroa 3114

At a glance

Tenancy Tribunal case 4799811 — 14-day notice at 55 Harbour View Road, Omokoroa 3114

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions