What was the outcome of Tenancy Tribunal case 5015109?

The tribunal order states: The tenancy of Rita Sadlier at Unit/Flat 5, 163A Commerce Street, Whakatane,

How much money was awarded in case 5015109?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5015109?

The dispute type was not classified.

Where can I read the official tribunal order for case 5015109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11001095-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5015109?

The tribunal order states: The tenancy of Rita Sadlier at Unit/Flat 5, 163A Commerce Street, Whakatane,

How much money was awarded in case 5015109?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5015109?

The dispute type was not classified.

Where can I read the official tribunal order for case 5015109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11001095-Tenancy_Tribunal_Order.pdf.

Unit/Flat 5, 163A Commerce Street, Whakatane, Tenancy Tribunal Case 5015109 — Tenancy dispute

Order

The tenancy of Rita Sadlier at Unit/Flat 5, 163A Commerce Street, Whakatane, Whakatane 3120 is terminated, and possession is granted to Kāinga Ora– Homes And Communities, at 6.00pm on Wednesday 30 October 2024.

Reasons

The landlord attended the hearing which was a face-to-face hearing.
The tenant did not attend the hearing.
I am satisfied the tenant was properly served with notice of the hearing. The hearing proceeded in her absence. Application
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The landlord is a social housing provider. Relevant law
The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

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 tenant has breached their obligations by causing or permitting interference with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood. See section 40 (2) (c) of the RTA.
The landlord provided a timeline of the incidents of concerns starting in February 2022.
The landlord provided witness statements with some of the witnesses names redacted. The landlord advised they would be willing to give evidence by phone if needed.
One witness statement from a neighbour was named and signed and confirmed the breaches the landlord identified. I gave weight to this named witnesses written evidence.
A report from the NZ Police was also provided confirming there have been several attendances at the premises from October 2021 to September 2024 for violence.
In 2024 alone the landlord has provided warnings to the tenant in relation to anti-social behaviour on the following dates as summarised below: a. 14 March 2024 – in relation to an incident on 1 March 2024 where there was fighting at the premises. b. 22 March 2024 - in relation to an incident on 21 February 2024 whereby the tenant and her visitor abused and swore at the neighbour. c. 8 May 2024 - in relation to an incident on 18 April 2024 of visitors fighting at the property and the Police having to attend. d. 30 May 2024 - in relation to fighting at the premises. e. 11 June 2024 in relation to an incident on 21 May 2024 where the tenant abused and swore at the neighbour. f. 23 July 2024 - in relation to an incident on 11 June 2024 whereby the tenant and her visitor abused and swore at the neighbour. g. 1 August 2024 in relation to an incident on 30 July 2024 whereby the tenant and her visitor abused and swore at the neighbour. h. 20 August 2024 in relation to incidents on 1 and 9 August 2024 whereby the tenant and her visitor abused and swore at the neighbour.
The breach is not capable of remedy because. a. The tenant has created a negative ongoing stigma on the property. b. The tenant is putting neighbours at risk, to the extent they have felt unsafe for some time and continue to do so. c. The harm caused by the breaches cannot be remedied.
The landlord did meet with the tenant to discuss the ongoing breaches. On 7 August 2024 at a meeting between the landlord and tenant the tenant gave written notice to terminate the tenancy but later withdrew this, claiming she was pressured to give notice. I am proceeding on the basis the landlord accepted the tenant withdrew the notice to terminate. Inequitable to refuse to terminate a tenancy.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229 (Judge Rowe), the Court needed to consider the extent of section 56(1)(c), which requires consideration of whether the breach: ...is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.
The Court set out a range of factors that would be relevant in that case, being: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches was such it was 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.
Having regard to these factors I consider it would be inequitable to refuse to terminate the tenancy for the following reasons. a. The tenancy commenced on 9 November 2006. This has been a long- standing tenancy. Issues arose in 2021. b. The tenant has received repeated warnings for the breaches. c. There is no evidence that the landlord has acted inappropriately. d. The gravity of the breach is serious, the threats are serious, the disturbances are significant and on-going and other neighbouring tenants are at risk. e. Termination is a proportionate response to address the safety concerns that tenant has created for the neighbouring tenants. Suppression
The landlord did not seek suppression.
The landlord did apply for suppression of the tenant’s name.
Having regard to the interests of the parties and the public interest I have not made an order suppressing the tenant’s names and identifying details. Filing fee
The landlord did not seek reimbursement of the filing fee.

Order

The tenancy of Rita Sadlier at Unit/Flat 5, 163A Commerce Street, Whakatane, Whakatane 3120 is terminated, and possession is granted to Kāinga Ora– Homes And Communities, at 6.00pm on Wednesday 30 October 2024.

Reasons

The landlord attended the hearing which was a face-to-face hearing.
The tenant did not attend the hearing.
I am satisfied the tenant was properly served with notice of the hearing. The hearing proceeded in her absence. Application
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The landlord is a social housing provider. Relevant law
The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

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 tenant has breached their obligations by causing or permitting interference with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood. See section 40 (2) (c) of the RTA.
The landlord provided a timeline of the incidents of concerns starting in February 2022.
The landlord provided witness statements with some of the witnesses names redacted. The landlord advised they would be willing to give evidence by phone if needed.
One witness statement from a neighbour was named and signed and confirmed the breaches the landlord identified. I gave weight to this named witnesses written evidence.
A report from the NZ Police was also provided confirming there have been several attendances at the premises from October 2021 to September 2024 for violence.
In 2024 alone the landlord has provided warnings to the tenant in relation to anti-social behaviour on the following dates as summarised below: a. 14 March 2024 – in relation to an incident on 1 March 2024 where there was fighting at the premises. b. 22 March 2024 - in relation to an incident on 21 February 2024 whereby the tenant and her visitor abused and swore at the neighbour. c. 8 May 2024 - in relation to an incident on 18 April 2024 of visitors fighting at the property and the Police having to attend. d. 30 May 2024 - in relation to fighting at the premises. e. 11 June 2024 in relation to an incident on 21 May 2024 where the tenant abused and swore at the neighbour. f. 23 July 2024 - in relation to an incident on 11 June 2024 whereby the tenant and her visitor abused and swore at the neighbour. g. 1 August 2024 in relation to an incident on 30 July 2024 whereby the tenant and her visitor abused and swore at the neighbour. h. 20 August 2024 in relation to incidents on 1 and 9 August 2024 whereby the tenant and her visitor abused and swore at the neighbour.
The breach is not capable of remedy because. a. The tenant has created a negative ongoing stigma on the property. b. The tenant is putting neighbours at risk, to the extent they have felt unsafe for some time and continue to do so. c. The harm caused by the breaches cannot be remedied.
The landlord did meet with the tenant to discuss the ongoing breaches. On 7 August 2024 at a meeting between the landlord and tenant the tenant gave written notice to terminate the tenancy but later withdrew this, claiming she was pressured to give notice. I am proceeding on the basis the landlord accepted the tenant withdrew the notice to terminate. Inequitable to refuse to terminate a tenancy.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229 (Judge Rowe), the Court needed to consider the extent of section 56(1)(c), which requires consideration of whether the breach: ...is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.
The Court set out a range of factors that would be relevant in that case, being: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches was such it was 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.
Having regard to these factors I consider it would be inequitable to refuse to terminate the tenancy for the following reasons. a. The tenancy commenced on 9 November 2006. This has been a long- standing tenancy. Issues arose in 2021. b. The tenant has received repeated warnings for the breaches. c. There is no evidence that the landlord has acted inappropriately. d. The gravity of the breach is serious, the threats are serious, the disturbances are significant and on-going and other neighbouring tenants are at risk. e. Termination is a proportionate response to address the safety concerns that tenant has created for the neighbouring tenants. Suppression
The landlord did not seek suppression.
The landlord did apply for suppression of the tenant’s name.
Having regard to the interests of the parties and the public interest I have not made an order suppressing the tenant’s names and identifying details. Filing fee
The landlord did not seek reimbursement of the filing fee.

Tenancy Tribunal case 5015109 — Tenancy dispute at Unit/Flat 5, 163A Commerce Street, Whakatane,

At a glance

Claims & awards

Tenancy Tribunal case 5015109 — Tenancy dispute at Unit/Flat 5, 163A Commerce Street, Whakatane,

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