What was the outcome of Tenancy Tribunal case 4924294?

The tribunal order states: The tenancy of Michael Alexandrovic Gerasimov at 83 Moa Road, Point

How much money was awarded in case 4924294?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4924294?

The dispute type was not classified.

Where can I read the official tribunal order for case 4924294?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10662726-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4924294?

The tribunal order states: The tenancy of Michael Alexandrovic Gerasimov at 83 Moa Road, Point

How much money was awarded in case 4924294?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4924294?

The dispute type was not classified.

Where can I read the official tribunal order for case 4924294?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10662726-Tenancy_Tribunal_Order.pdf.

83 Moa Road, Point Chevalier, Auckland 1022 Tenancy Tribunal Case 4924294 — Tenancy dispute

Order

The tenancy of Michael Alexandrovic Gerasimov at 83 Moa Road, Point Chevalier, Auckland 1022 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, at 11.59 am on Monday 12 August 2024.

Reasons

The landlord attended this video hearing on 2 August 2024.
The tenant did not attend the hearing by Teams video. Telephone calls were made to the tenant on the number provided at the allocated hearing time. The landlord confirmed that they did not have any other contact details for the tenant.
The Tribunal may hear matters in the absence of a party where satisfied that notice of the hearing has been served. I am satisfied that notice has been given.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

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.
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 background as explained by the landlord is as follows.
The tenancy commenced on 21 December 2023.
The tenant is the sole occupant of two bedroom, two story unit (“the premises”). The premises are attached to a twin two storey home, which houses an elderly female tenant. The tenant’s premises back onto two other homes that are four bedroom family homes, with a mix of children from school aged to teenagers. Opposite the tenant’s premises are a mix of family homes and private owners. The homes opposite have families with children aged four years to older.
Concerns over the tenant’s behaviour commenced in April 2024. Other neighbouring tenants reported that the tenant was constantly watching and then videoing them.
Further complaints were received of the tenant standing in his bedroom window looking at the bedroom of a neighbour’s daughter. This is alleged to have occurred most nights and at times during the day. The tenant would stand outside his unit and look at passing children.
Further complaints were received of the tenant yelling and arguing with his neighbours.
On 11 April 2024, a mattress from the premises was lit on fire outside the premises. FENZ attended the fire and were able to contain it. It is suggested that the tenant lit the fire himself.
On 23 May 2024, the tenant damaged a window at the premises. The tenant was removed from the premises by the Police under the Mental Health Act.
The most concerning incident and the basis for this breach application occurred on 17 June 2024 . The incident was video recorded by a neighbour. The video shows the tenant leaving the premises. At the front door he undresses and exposes himself. The front of the premises is open to the street. The tenant was yelling out. The tenant commenced masturbating in view of the street. The tenant then walked naked up the road and was seen by his elderly neighbour. The video lasts for two minutes, during which time, the tenant can be seen both by his neighbours and from the street.
Two complaints of this behaviour by tenants were received by the landlord.
The landlord said that they put the evidence and allegations to the tenant and despite there being video evidence, the tenant denied being involved.
The landlord’s claim is that the tenant has breached s.40(2)(c) of the Residential Tenancies Act 1986 (“RTA”). That section provides in part that a tenant shall not cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlords other tenants or of any person residing in the neighbourhood. The subsection is for the benefit of other tenants and neighbours of the tenant. The Tribunal does not have jurisdiction to determine disputes between tenants or between tenants and third parties.
There is a responsibility on the landlord to take all reasonable steps to ensure that the landlord’s other tenants do not cause or permit interference with the reasonable peace, comfort of privacy of the tenant. Where a landlord receives a complaint from other tenants or neighbours, they can take action under s.56 RTA to terminate the tenancy.
In this case, the landlord has received complaints from tenants of the breach.
The landlord has applied to the Tribunal to terminate the tenancy under s.56 RTA.
Section 56 RTA provides that on the application of any landlord , the Tribunal may make an order terminating the tenancy if it is satisfied that the tenant has committed a breach of the RTA and the breach is such a nature that it would be inequitable to refuse to make an order terminating the tenancy.
Has the tenant breached the RTA?
The undisputed evidence provided by the landlord is such that I have no difficulty in finding that the tenant has caused interference with the reasonable peace and comfort of the landlord’s other tenants.
A breach of this type cannot be remedied and as such there is no requirement that the landlord give the tenant notice.
Having found that there has been a breach which is not capable of remedy, I must consider whether it would be inequitable to refuse to make an order terminating the tenancy. The District Court in Terangi v Housing New Zealand Corporation DC Porirua CIV-2010-091-110, 28 June 2010 considered that the following factors were relevant in considering this issue; • Was the breach deliberate or a matter entirely outside the tenant’s control? • Whether the breach was an immoral or illegal act. • The conduct of the landlord. • The gravity of the breach. • Whether termination of the tenancy is a proportionate response.
The activity complained of was a deliberate act by the tenant. The tenant yelled out, which resulted in attention being drawn to him.
The activity complained of is a breach of the Summary Offences Act 1981 which notes that it is an offence to within view of any public place expose any part of the genitals intentionally or obscenely.
The activity complained of is also a breach of the Crimes Act 1961, which makes it an offence to do an indecent act within view of any public place.
The conduct of the landlord is not relevant.
The extended period over which the tenant has exposed himself and masturbated in view of the public is an aggravating feature. That no young children were present was a matter of luck only.
The tenant’s denials are an indication of a lack of self-awareness.
For that reasons set out above, it would be inequitable to refuse to make an order terminating the tenancy. I consider the termination of the tenancy to be a proportionate response.

Order

The tenancy of Michael Alexandrovic Gerasimov at 83 Moa Road, Point Chevalier, Auckland 1022 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, at 11.59 am on Monday 12 August 2024.

Reasons

The landlord attended this video hearing on 2 August 2024.
The tenant did not attend the hearing by Teams video. Telephone calls were made to the tenant on the number provided at the allocated hearing time. The landlord confirmed that they did not have any other contact details for the tenant.
The Tribunal may hear matters in the absence of a party where satisfied that notice of the hearing has been served. I am satisfied that notice has been given.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

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.
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 background as explained by the landlord is as follows.
The tenancy commenced on 21 December 2023.
The tenant is the sole occupant of two bedroom, two story unit (“the premises”). The premises are attached to a twin two storey home, which houses an elderly female tenant. The tenant’s premises back onto two other homes that are four bedroom family homes, with a mix of children from school aged to teenagers. Opposite the tenant’s premises are a mix of family homes and private owners. The homes opposite have families with children aged four years to older.
Concerns over the tenant’s behaviour commenced in April 2024. Other neighbouring tenants reported that the tenant was constantly watching and then videoing them.
Further complaints were received of the tenant standing in his bedroom window looking at the bedroom of a neighbour’s daughter. This is alleged to have occurred most nights and at times during the day. The tenant would stand outside his unit and look at passing children.
Further complaints were received of the tenant yelling and arguing with his neighbours.
On 11 April 2024, a mattress from the premises was lit on fire outside the premises. FENZ attended the fire and were able to contain it. It is suggested that the tenant lit the fire himself.
On 23 May 2024, the tenant damaged a window at the premises. The tenant was removed from the premises by the Police under the Mental Health Act.
The most concerning incident and the basis for this breach application occurred on 17 June 2024 . The incident was video recorded by a neighbour. The video shows the tenant leaving the premises. At the front door he undresses and exposes himself. The front of the premises is open to the street. The tenant was yelling out. The tenant commenced masturbating in view of the street. The tenant then walked naked up the road and was seen by his elderly neighbour. The video lasts for two minutes, during which time, the tenant can be seen both by his neighbours and from the street.
Two complaints of this behaviour by tenants were received by the landlord.
The landlord said that they put the evidence and allegations to the tenant and despite there being video evidence, the tenant denied being involved.
The landlord’s claim is that the tenant has breached s.40(2)(c) of the Residential Tenancies Act 1986 (“RTA”). That section provides in part that a tenant shall not cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlords other tenants or of any person residing in the neighbourhood. The subsection is for the benefit of other tenants and neighbours of the tenant. The Tribunal does not have jurisdiction to determine disputes between tenants or between tenants and third parties.
There is a responsibility on the landlord to take all reasonable steps to ensure that the landlord’s other tenants do not cause or permit interference with the reasonable peace, comfort of privacy of the tenant. Where a landlord receives a complaint from other tenants or neighbours, they can take action under s.56 RTA to terminate the tenancy.
In this case, the landlord has received complaints from tenants of the breach.
The landlord has applied to the Tribunal to terminate the tenancy under s.56 RTA.
Section 56 RTA provides that on the application of any landlord , the Tribunal may make an order terminating the tenancy if it is satisfied that the tenant has committed a breach of the RTA and the breach is such a nature that it would be inequitable to refuse to make an order terminating the tenancy.
Has the tenant breached the RTA?
The undisputed evidence provided by the landlord is such that I have no difficulty in finding that the tenant has caused interference with the reasonable peace and comfort of the landlord’s other tenants.
A breach of this type cannot be remedied and as such there is no requirement that the landlord give the tenant notice.
Having found that there has been a breach which is not capable of remedy, I must consider whether it would be inequitable to refuse to make an order terminating the tenancy. The District Court in Terangi v Housing New Zealand Corporation DC Porirua CIV-2010-091-110, 28 June 2010 considered that the following factors were relevant in considering this issue; • Was the breach deliberate or a matter entirely outside the tenant’s control? • Whether the breach was an immoral or illegal act. • The conduct of the landlord. • The gravity of the breach. • Whether termination of the tenancy is a proportionate response.
The activity complained of was a deliberate act by the tenant. The tenant yelled out, which resulted in attention being drawn to him.
The activity complained of is a breach of the Summary Offences Act 1981 which notes that it is an offence to within view of any public place expose any part of the genitals intentionally or obscenely.
The activity complained of is also a breach of the Crimes Act 1961, which makes it an offence to do an indecent act within view of any public place.
The conduct of the landlord is not relevant.
The extended period over which the tenant has exposed himself and masturbated in view of the public is an aggravating feature. That no young children were present was a matter of luck only.
The tenant’s denials are an indication of a lack of self-awareness.
For that reasons set out above, it would be inequitable to refuse to make an order terminating the tenancy. I consider the termination of the tenancy to be a proportionate response.

Tenancy Tribunal case 4924294 — Tenancy dispute at 83 Moa Road, Point Chevalier, Auckland 1022

At a glance

Claims & awards

Tenancy Tribunal case 4924294 — Tenancy dispute at 83 Moa Road, Point Chevalier, Auckland 1022

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Frequently asked questions