What was the outcome of Tenancy Tribunal case 4816438?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4816438?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4816438?

The primary dispute was Property damage. Related themes: Unit Titles.

Where can I read the official tribunal order for case 4816438?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10319383-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4816438?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4816438?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4816438?

The primary dispute was Property damage. Related themes: Unit Titles.

Where can I read the official tribunal order for case 4816438?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10319383-Tenancy_Tribunal_Order.pdf.

Unit/Flat 5, 1195 Dominion Road, Mount Roskill, Auckland Tenancy Tribunal Case 4816438 — Property damage

Order

The application is dismissed.

Reasons

The landlord was represented at the hearing by Ms Perese. The tenant did not attend the hearing. I proceeded with the hearing in the absence of the respondent as I am satisfied the respondent was correctly served regarding this hearing.
The landlord claims that the tenant is in breach of his tenancy agreement in that he has a pet dog at his premises. The landlord is seeking an Order requiring the tenant to remove his dog permanently from the premises, or allowing Kainga Ora to remove the dog from the premises at the tenant’s expense.
The tenant signed a tenancy agreement on 29 March 2021 which states that Kainga Ora may allow a tenant to keep a pet under certain conditions which are as follows: • Kainga Ora thinks your home is suitable for keeping a pet and • The pet is not a health or safety risk to Kainga Ora staff or contractors or others and • The pet is not likely to, or does not, attack any person or other pet and • The pet is not likely to, or does not, cause a nuisance to your neighbours and • The pet is not likely to, or does not, damage the home and • You secure the pet when Kainga Ora staff or contractors visit the home and • You meet: i. The Kainga Ora policy for pets, updated from time to time and available on the Kainga Ora website and ii. All your legal responsibilities of pet ownership including any applicable local council bylaws, body corporate rules and other relevant legislation and iii. If the pet is a dog, as long as:
The dog is not a specified dangerous or menacing dog under the Dog Control act 1996 and
You or the dog owner are not a prohibited or disqualified pet owner under the dog Control Act 1996 or the Animal Welfare Act 1999.
An “addendum” was also included in the tenancy agreement and it was titled “Special Clauses For Residents Living in Apartments & Complexes.” The addendum states: “No dogs or cats are allowed in the apartment building or compound at all times”.
Ms Perese submitted the property in question is owned by Kainga Ora, and not a private owner.
By simply keeping a dog at the premises, the tenant is breaching the rule set out in the addendum.
Ms Perese’s case is that this addendum is justified by the rules regarding pets set out in the tenancy agreement: “The pet is not likely to, or does not, cause a nuisance to your neighbours.” Ms Perese’s case is that the pet is causing nuisance to a neighbour.
On 4 December 2023 Kainga Ora issued the tenant with a 14-day notice to remedy a breach. This notice expired on 22 December 2023 without the breach being remedied.
It is a landlord’s prerogative to set the rules and regulations for their properties. The Tenancy Tribunal’s jurisdiction is defined in the Residential Tenancies Act, 1986, (the “RTA”). The RTA does not limit a tenant’s ability to keep a pet. Section 40 of the RTA, which sets out a tenant’s specific obligations does not refer to pets. Rules and regulations set by a landlord may be permissible in as much as they are not contrary to the RTA, but this does not mean they are enforceable by the Tribunal. This covers both the bare breach of the rule, and the 14-day notice to remedy a breach, issued under section 56 of the RTA.
Because keeping a pet is not of itself a breach of the RTA, I am not bound to make an Order enforcing the rule in this instance; I am interested in the circumstances of the breach and my Order is based on the circumstances of the breach.
Ms Perese stated that the landlord believes the tenant started keeping his dog, which she believes is a small one, at the premises a few months after the tenancy began. This means the tenant has now had his dog at the premises for approximately three years, and it appears that the standard Kainga Ora rules around keeping pets were not an issue for two and a half years: That is, the dog and the owner (in relation to the dog) have not been a risk, or caused damage or been a nuisance to other people or property.
Two and a half years passing between Kainga Ora becoming aware of the tenant keeping a dog and Kainga Ora first issuing a notice for the breach, counts against the issuing of an Order on the basis of the bare breach of the rules. That is because Kainga Ora’s conduct for that period of time has indicated consent to Mr Rogers’ breach of the rule. What, if anything, changed so that Kainga Ora saw fit to issue a breach notice to Mr Rogers?
Ms Perese presented anecdotal evidence of complaints relating to noise from the dog and the tenant hosing dog faeces over the side of his balcony. There is no written record of these complaints; no dates, no record of who made the complaints or what the details or circumstances of the complaints were. As such I do not attribute much weight to them.
Three records of complaints by an undisclosed neighbour dating from 4 December 2023, 7 December 2023, and 28 March 2024 regarding the “stench” of the dog, were provided in today’s hearing. These complaints were presented orally by Ms Perese. Again, the details of the complaints are thin; it is not clear what the “stench” is of, why it wasn’t an issue for approximately two and a half years, or why it wasn’t noted by Kainga Ora during tenancy inspections.
Mr Rogers did not attend the hearing, so a lot of relevant information is not available. Without making up facts I am none the less prepared to take judicial notice that after three years of a solo tenancy living with his pet dog, Mr Rogers is likely to be emotionally connected to his pet, and to have his pet forcibly removed would very likely cause Mr Rogers some emotional distress. Related to this is the likelihood that the emotional connection Mr Rogers has with his pet brings a benefit to Mr Rogers.
Ms Perese was not able to say what would happen to the dog if it were forcibly removed, but presumably it would be taken to an animal shelter and if a new owner couldn’t be found for it, it would be destroyed.
Ms Perese stated that whereas tenants are sometimes transferred to different properties, there was a waiting list and transferring a tenant so they could keep a pet wouldn’t rate high on the priority list.
In summary I consider the relevant circumstances of this case to be the following: a. Mr Rogers is clearly in breach of a rule that was presented to him at the beginning of the tenancy. b. The property is owned by Kainga Ora. c. Three complaints against Mr Rogers keeping a pet have been made by a neighbouring tenant, and recorded by Kainga Ora. d. Kainga Ora tacitly approved Mr Rogers keeping a pet dog for approximately two and a half years, despite the existence of rules prohibiting such. e. The nature of the complaints about Mr Roger’s dog are thin on detail and substance. f. The likely consequences to Mr Rogers and his pet dog if the pet dog was forcibly removed are severe. g. Alternative remedies are available to Kainga Ora, such as transferring Mr Rogers to a more suitable property.
Having considered this application carefully I am not persuaded that the complaints against Mr Rogers are sufficient to justify the forced removal of his pet dog: However, a stronger application might yield a different result.
As a final note, Mr Rogers may at the very least want to ensure he is acting responsibly towards his neighbours with regard to the keeping of his pet dog, and he may even want to consider rehousing his pet dog of his own accord.

Order

The application is dismissed.

Reasons

The landlord was represented at the hearing by Ms Perese. The tenant did not attend the hearing. I proceeded with the hearing in the absence of the respondent as I am satisfied the respondent was correctly served regarding this hearing.
The landlord claims that the tenant is in breach of his tenancy agreement in that he has a pet dog at his premises. The landlord is seeking an Order requiring the tenant to remove his dog permanently from the premises, or allowing Kainga Ora to remove the dog from the premises at the tenant’s expense.
The tenant signed a tenancy agreement on 29 March 2021 which states that Kainga Ora may allow a tenant to keep a pet under certain conditions which are as follows: • Kainga Ora thinks your home is suitable for keeping a pet and • The pet is not a health or safety risk to Kainga Ora staff or contractors or others and • The pet is not likely to, or does not, attack any person or other pet and • The pet is not likely to, or does not, cause a nuisance to your neighbours and • The pet is not likely to, or does not, damage the home and • You secure the pet when Kainga Ora staff or contractors visit the home and • You meet: i. The Kainga Ora policy for pets, updated from time to time and available on the Kainga Ora website and ii. All your legal responsibilities of pet ownership including any applicable local council bylaws, body corporate rules and other relevant legislation and iii. If the pet is a dog, as long as:
The dog is not a specified dangerous or menacing dog under the Dog Control act 1996 and
You or the dog owner are not a prohibited or disqualified pet owner under the dog Control Act 1996 or the Animal Welfare Act 1999.
An “addendum” was also included in the tenancy agreement and it was titled “Special Clauses For Residents Living in Apartments & Complexes.” The addendum states: “No dogs or cats are allowed in the apartment building or compound at all times”.
Ms Perese submitted the property in question is owned by Kainga Ora, and not a private owner.
By simply keeping a dog at the premises, the tenant is breaching the rule set out in the addendum.
Ms Perese’s case is that this addendum is justified by the rules regarding pets set out in the tenancy agreement: “The pet is not likely to, or does not, cause a nuisance to your neighbours.” Ms Perese’s case is that the pet is causing nuisance to a neighbour.
On 4 December 2023 Kainga Ora issued the tenant with a 14-day notice to remedy a breach. This notice expired on 22 December 2023 without the breach being remedied.
It is a landlord’s prerogative to set the rules and regulations for their properties. The Tenancy Tribunal’s jurisdiction is defined in the Residential Tenancies Act, 1986, (the “RTA”). The RTA does not limit a tenant’s ability to keep a pet. Section 40 of the RTA, which sets out a tenant’s specific obligations does not refer to pets. Rules and regulations set by a landlord may be permissible in as much as they are not contrary to the RTA, but this does not mean they are enforceable by the Tribunal. This covers both the bare breach of the rule, and the 14-day notice to remedy a breach, issued under section 56 of the RTA.
Because keeping a pet is not of itself a breach of the RTA, I am not bound to make an Order enforcing the rule in this instance; I am interested in the circumstances of the breach and my Order is based on the circumstances of the breach.
Ms Perese stated that the landlord believes the tenant started keeping his dog, which she believes is a small one, at the premises a few months after the tenancy began. This means the tenant has now had his dog at the premises for approximately three years, and it appears that the standard Kainga Ora rules around keeping pets were not an issue for two and a half years: That is, the dog and the owner (in relation to the dog) have not been a risk, or caused damage or been a nuisance to other people or property.
Two and a half years passing between Kainga Ora becoming aware of the tenant keeping a dog and Kainga Ora first issuing a notice for the breach, counts against the issuing of an Order on the basis of the bare breach of the rules. That is because Kainga Ora’s conduct for that period of time has indicated consent to Mr Rogers’ breach of the rule. What, if anything, changed so that Kainga Ora saw fit to issue a breach notice to Mr Rogers?
Ms Perese presented anecdotal evidence of complaints relating to noise from the dog and the tenant hosing dog faeces over the side of his balcony. There is no written record of these complaints; no dates, no record of who made the complaints or what the details or circumstances of the complaints were. As such I do not attribute much weight to them.
Three records of complaints by an undisclosed neighbour dating from 4 December 2023, 7 December 2023, and 28 March 2024 regarding the “stench” of the dog, were provided in today’s hearing. These complaints were presented orally by Ms Perese. Again, the details of the complaints are thin; it is not clear what the “stench” is of, why it wasn’t an issue for approximately two and a half years, or why it wasn’t noted by Kainga Ora during tenancy inspections.
Mr Rogers did not attend the hearing, so a lot of relevant information is not available. Without making up facts I am none the less prepared to take judicial notice that after three years of a solo tenancy living with his pet dog, Mr Rogers is likely to be emotionally connected to his pet, and to have his pet forcibly removed would very likely cause Mr Rogers some emotional distress. Related to this is the likelihood that the emotional connection Mr Rogers has with his pet brings a benefit to Mr Rogers.
Ms Perese was not able to say what would happen to the dog if it were forcibly removed, but presumably it would be taken to an animal shelter and if a new owner couldn’t be found for it, it would be destroyed.
Ms Perese stated that whereas tenants are sometimes transferred to different properties, there was a waiting list and transferring a tenant so they could keep a pet wouldn’t rate high on the priority list.
In summary I consider the relevant circumstances of this case to be the following: a. Mr Rogers is clearly in breach of a rule that was presented to him at the beginning of the tenancy. b. The property is owned by Kainga Ora. c. Three complaints against Mr Rogers keeping a pet have been made by a neighbouring tenant, and recorded by Kainga Ora. d. Kainga Ora tacitly approved Mr Rogers keeping a pet dog for approximately two and a half years, despite the existence of rules prohibiting such. e. The nature of the complaints about Mr Roger’s dog are thin on detail and substance. f. The likely consequences to Mr Rogers and his pet dog if the pet dog was forcibly removed are severe. g. Alternative remedies are available to Kainga Ora, such as transferring Mr Rogers to a more suitable property.
Having considered this application carefully I am not persuaded that the complaints against Mr Rogers are sufficient to justify the forced removal of his pet dog: However, a stronger application might yield a different result.
As a final note, Mr Rogers may at the very least want to ensure he is acting responsibly towards his neighbours with regard to the keeping of his pet dog, and he may even want to consider rehousing his pet dog of his own accord.

Tenancy Tribunal case 4816438 — Property damage at Unit/Flat 5, 1195 Dominion Road, Mount Roskill, Auckland

At a glance

Tenancy Tribunal case 4816438 — Property damage at Unit/Flat 5, 1195 Dominion Road, Mount Roskill, Auckland

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