What was the outcome of Tenancy Tribunal case 4846701?

The tribunal order states: The tenancy of Richard Malcolm at 344 Annesbrook Drive, Annesbrook, Nelson

How much money was awarded in case 4846701?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4846701?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4846701?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10342251-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4846701?

The tribunal order states: The tenancy of Richard Malcolm at 344 Annesbrook Drive, Annesbrook, Nelson

How much money was awarded in case 4846701?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4846701?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4846701?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10342251-Tenancy_Tribunal_Order.pdf.

344 Annesbrook Drive, Annesbrook, Nelson 7011 Tenancy Tribunal Case 4846701 — 14-day notice

Order

The tenancy of Richard Malcolm at 344 Annesbrook Drive, Annesbrook, Nelson 7011 is terminated, and possession is granted to Summit Property Management Limited As Agent For Andrew Sullivan, at 23:59 hours Sunday 30 June 2024.
By the mutual agreement of the parties, the tenancy may be ended earlier than the date in [1] by the tenant giving no less than five working days written notice to terminate.
Richard Malcolm must pay Summit Property Management Limited As Agent For Andrew Sullivan $20.44 immediately, being the filing application fee.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The landlord application involved evidence that was challenged by the respondent.
An evaluation of this application involves being totally fair and objective and above all to fully take into account the information and evidence. Having said that the Tribunal is mindful of its own jurisdiction and application regarding evidence. Overarching the Tribunal's assessment and determination are three fundamental aspects, namely: a) The onus and standard of proof - The responsibility of proving that it was the respondent who used, or permitted, the premises to be used for any unlawful activity (see s 40(2)(b) Residential Tenancies Act 1986 “RTA”) is with the applicant. As to the standard of proof it is at a lesser standard than the criminal standard of beyond reasonable doubt and is described as proof on the balance of probabilities meaning that it is more likely than not. b) Circumstantial evidence and inferences - circumstantial evidence is also known as indirect evidence. It is distinguished from direct evidence which if believed proves the existence of a particular fact without any inference or presumption required. On its own it is the nature of circumstantial evidence for more than one explanation to still be possible. Inference from one piece of circumstantial evidence may not guarantee accuracy. Circumstantial evidence usually accumulates into a collection so that the pieces then become corroborating evidence. Together they may more strongly support one particular inference over another. Importantly an inference is not a guess but rather a logical deduction from such facts. c) Section 97(4) RTA provides the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law. The situation
This has been a long tenancy, commencing in 2019.
On 21 March 2024 the agent was conducting a routine inspection. This was carried out with the owner present.
The landlord filed this application on 26 March 2024.
During the inspection, the landlord discovered two grow tents with potted cannabis plants in a separated area of the garage. A series of photos were taken and the police later notified. The landlord stated the police went to the property some four hours later. While the tents were in situ, any potted cannabis plants were no longer there.
The landlord provided photos of the tents with plants in, as taken that day. It also provided an email from the police regarding the matter, the written statement to the police provided by the inspecting agent, and an email from the owner who was present at the inspection.
I am satisfied the evidence establishes it more likely than not that cannabis was being cultivated in the garage. The actual volume is open to challenge but there were sufficient plants in the photo to establish, in my mind, that the cultivation of cannabis was of such a scale, and planning, that the premises was being used for an unlawful purpose.
The tenant confirmed the police have laid related charges against him. He advised he is pleading not guilty. He stated the tents were his fathers and he had recently put them up in preparation for plant propagation.
I explained this Tribunal’s process and consideration of evidence. This determination has no bearing on any other jurisdiction. The question I needed to answer after hearing the submissions and reviewing the evidence was should this tenancy be terminated.
I heard submissions from the tenant questioning the validity of the inspection process. He also questioned the right of the landlord to inspect the area where the tents were located, as well as the agency of Summit. I do not consider those, or other concerns raised by the tenant, have any application in this hearing and the landlord was entitled to inspect the area as it presented.

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 s 56(1) RTA).
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant to remedy the breach, although the Tribunal may consider whether a warning should have been given when determining whether it would be inequitable to refuse to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours. Section 40 RTA outlines a number of these, including s 40(2)(b) as claimed here.
Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent.
The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: [46] Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). The breach irremediably arises when the specified failure occurs. [47] It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. I needed to consider s 56(1)(c) RTA. Inequitable not to terminate
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court also considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.
The evidence from the landlord is compelling. I have already indicated it proven the premises were used for an unlawful purpose. I have considered the premeditation apparent in the location (and possible attempt at concealment using a canvas wall), the volume of plants evidenced, and the seriousness of such cultivation if criminally proven 1 .
I find the breach was deliberate and of sufficient gravity that termination of the tenancy is appropriate.
There are no other issues of concern regarding the tenancy and an extended end date has been provided, with an earlier exit for the tenant’s convenience if so desired. Application filing fee
Because Summit Property Management Limited As Agent For Andrew Sullivan has wholly succeeded with the claim I must reimburse the filing fee.

Order

The tenancy of Richard Malcolm at 344 Annesbrook Drive, Annesbrook, Nelson 7011 is terminated, and possession is granted to Summit Property Management Limited As Agent For Andrew Sullivan, at 23:59 hours Sunday 30 June 2024.
By the mutual agreement of the parties, the tenancy may be ended earlier than the date in [1] by the tenant giving no less than five working days written notice to terminate.
Richard Malcolm must pay Summit Property Management Limited As Agent For Andrew Sullivan $20.44 immediately, being the filing application fee.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The landlord application involved evidence that was challenged by the respondent.
An evaluation of this application involves being totally fair and objective and above all to fully take into account the information and evidence. Having said that the Tribunal is mindful of its own jurisdiction and application regarding evidence. Overarching the Tribunal's assessment and determination are three fundamental aspects, namely: a) The onus and standard of proof - The responsibility of proving that it was the respondent who used, or permitted, the premises to be used for any unlawful activity (see s 40(2)(b) Residential Tenancies Act 1986 “RTA”) is with the applicant. As to the standard of proof it is at a lesser standard than the criminal standard of beyond reasonable doubt and is described as proof on the balance of probabilities meaning that it is more likely than not. b) Circumstantial evidence and inferences - circumstantial evidence is also known as indirect evidence. It is distinguished from direct evidence which if believed proves the existence of a particular fact without any inference or presumption required. On its own it is the nature of circumstantial evidence for more than one explanation to still be possible. Inference from one piece of circumstantial evidence may not guarantee accuracy. Circumstantial evidence usually accumulates into a collection so that the pieces then become corroborating evidence. Together they may more strongly support one particular inference over another. Importantly an inference is not a guess but rather a logical deduction from such facts. c) Section 97(4) RTA provides the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law. The situation
This has been a long tenancy, commencing in 2019.
On 21 March 2024 the agent was conducting a routine inspection. This was carried out with the owner present.
The landlord filed this application on 26 March 2024.
During the inspection, the landlord discovered two grow tents with potted cannabis plants in a separated area of the garage. A series of photos were taken and the police later notified. The landlord stated the police went to the property some four hours later. While the tents were in situ, any potted cannabis plants were no longer there.
The landlord provided photos of the tents with plants in, as taken that day. It also provided an email from the police regarding the matter, the written statement to the police provided by the inspecting agent, and an email from the owner who was present at the inspection.
I am satisfied the evidence establishes it more likely than not that cannabis was being cultivated in the garage. The actual volume is open to challenge but there were sufficient plants in the photo to establish, in my mind, that the cultivation of cannabis was of such a scale, and planning, that the premises was being used for an unlawful purpose.
The tenant confirmed the police have laid related charges against him. He advised he is pleading not guilty. He stated the tents were his fathers and he had recently put them up in preparation for plant propagation.
I explained this Tribunal’s process and consideration of evidence. This determination has no bearing on any other jurisdiction. The question I needed to answer after hearing the submissions and reviewing the evidence was should this tenancy be terminated.
I heard submissions from the tenant questioning the validity of the inspection process. He also questioned the right of the landlord to inspect the area where the tents were located, as well as the agency of Summit. I do not consider those, or other concerns raised by the tenant, have any application in this hearing and the landlord was entitled to inspect the area as it presented.

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 s 56(1) RTA).
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant to remedy the breach, although the Tribunal may consider whether a warning should have been given when determining whether it would be inequitable to refuse to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours. Section 40 RTA outlines a number of these, including s 40(2)(b) as claimed here.
Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent.
The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: [46] Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). The breach irremediably arises when the specified failure occurs. [47] It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. I needed to consider s 56(1)(c) RTA. Inequitable not to terminate
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court also considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.
The evidence from the landlord is compelling. I have already indicated it proven the premises were used for an unlawful purpose. I have considered the premeditation apparent in the location (and possible attempt at concealment using a canvas wall), the volume of plants evidenced, and the seriousness of such cultivation if criminally proven 1 .
I find the breach was deliberate and of sufficient gravity that termination of the tenancy is appropriate.
There are no other issues of concern regarding the tenancy and an extended end date has been provided, with an earlier exit for the tenant’s convenience if so desired. Application filing fee
Because Summit Property Management Limited As Agent For Andrew Sullivan has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4846701 — 14-day notice at 344 Annesbrook Drive, Annesbrook, Nelson 7011

At a glance

Tenancy Tribunal case 4846701 — 14-day notice at 344 Annesbrook Drive, Annesbrook, Nelson 7011

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions