What was the outcome of Tenancy Tribunal case 5005801?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5005801?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5005801?

The primary dispute was Harassment. Related themes: Exemplary damages, Unit Titles.

Where can I read the official tribunal order for case 5005801?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11023093-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5005801?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5005801?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5005801?

The primary dispute was Harassment. Related themes: Exemplary damages, Unit Titles.

Where can I read the official tribunal order for case 5005801?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11023093-Tenancy_Tribunal_Order.pdf.

Unit/Flat 10, 436 Maunganui Road, Mount Maunganui, Tenancy Tribunal Case 5005801 — Harassment

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Reasons

Both parties attended the hearing.

Mr Coulson is named as the landlord and was the original tenant who had sublet the premises to the tenants for a fixed period of time with consent from the property manager.

Mr Jeremy Barker was the property manager for the premises, appointed as Mr Coulson’s agent because he was overseas for the period of the tenancy.

It was agreed that the tenants had specified that they had asked about noise at the premises as they had left a previous tenancy because of this problem and had a child who needed regular sleep due to a medical condition. Mr Colson who had lived at the premises for 18 months said that road and traffic noise were not a problem in his experience.

The premises are in a two storied block of 26 apartments and the tenancy was in a bottom floor apartment. The tenancy began on 27 June 2024 and soon after the start of the tenancy the tenants had an issue with noise coming from the property above them.

The tenants said that this continued throughout their tenancy and claimed that there was a breach of their quiet enjoyment and also sought compensation for the loss of peace, quiet enjoyment and sleep.

Applicants at the Tenancy Tribunal are required to establish the claim with evidence to the civil law standard of proof, being on the balance of probabilities.

It was not disputed that the tenants emailed Mr Coulson on 4 July 2024 complaining about the noise at the apartment and saying that they were not getting any sleep. They also applied to have fixed term changed to periodic to allow them the option to end the tenancy earlier.

The landlord replied that he had no issues with road noise during his 16 months living at the premises and because he was away for a fixed period of time the change to a periodic tenancy was denied.

It was not clarified until the tenants emailed the property manager on 12 July 2024 that the tenants were having no sleep due to the noise from the tenants living above them. They explained that the noise continued until the early hours of the morning preventing them from sleeping.

The property manager replied on the same day that he would email the body corporate manager about the noise and asked ‘what sort of noise is it?’

A copy of an email to body corporate dated 15 July 2024 was provided forwarding the tenants complaints. The managing director of the body corporate suggested that the tenants ‘have a nice chat’ with the upstairs occupants, but the tenant said they did not look friendly and declined.

The tenants contacted he property manager again on 23 July stating that the loud noises were continuing most nights and for the last 5 nights in a row.

The property manager referred this to the managing director again and asked that the owner of the apartment above them be informed, because they were not the landlord of these tenants.

On 26 July, the tenants were given the phone number of the owner of the apartment, Ms Olivier and were asked to call her directly.

From that date onwards the tenants dealt with Ms Olivier directly calling several times and updating her on the issue. The property manager and owner had no further communication with the tenants about the issue leading them to believe that it had been resolved. Was there a breach of section 38 Residential Tenancies Act 1986, RTA,

Jason Miller and Megs Wilson claims the landlord has harassed them.

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.

Section 38 RTA deals with acts by or on behalf of the landlord, a breach of which if it amounts to harassment, is an unlawful act. The noise at the premises came from third parties, they were not tenants of the landlord.

Section 40(1)(e) deals with acts by another tenant of the landlord that interferes with the tenant’s reasonable peace quiet or enjoyment. However, this section does not apply as the third parties were not the landlords’ tenants.

A landlord’s obligations are not to cause or permit any interference. Considering the email correspondence, I find that the landlord’s property manager responded to the tenants’ issues, raised and forwarded their concerns to the body corporate and owner of the apartment.

The tenants felt that the owner and property manager should have followed up but did not contact them again. The tenants took instructions from the property manager and dealt with the owner of the apartment directly.

The owner and property manager believed the issue was resolved after the 26 July as they did not receive any further complaints’, no notices to remedy were issued, the Police were not called, and no noise complaints were made.

The owner said that he had other communications with the tenants during this time relating to payment of rent and utilities and the issue of noise was not raised. He only learned that the noise issue continued throughout the tenancy at the end of tenancy inspection.

The owner believed that all steps were taken to remedy the matter and they did not cause or permit any disturbance, there was no deliberate interference with the tenant’s quiet enjoyment and based on the evidence provided I agree.

I find that the landlord has not breached the RTA. Putting aside that the noise was created by third parties, there was no evidence provided that the landlord t knew that the issue was on going and I find there was no evidence of any intent by the landlord to commit an unlawful act or to permit any interference with the tenant peace and quiet enjoyment.

There is no breach established and this application is therefore dismissed.

Reasons