What was the outcome of Tenancy Tribunal case 5073890?

The tribunal order states: The landlord and tenant applications are dismissed.

How much money was awarded in case 5073890?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5073890?

The primary dispute was 14-day notice. Related themes: Leaks.

Where can I read the official tribunal order for case 5073890?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11326298-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5073890?

The tribunal order states: The landlord and tenant applications are dismissed.

How much money was awarded in case 5073890?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5073890?

The primary dispute was 14-day notice. Related themes: Leaks.

Where can I read the official tribunal order for case 5073890?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11326298-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 130B Paihia Road, One Tree Hill, Auckland Tenancy Tribunal Case 5073890 — 14-day notice

Order

The landlord and tenant applications are dismissed.

Reasons

Both parties attended the hearing.
The tenant was supported by a key worker.
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the landlord must establish that what they are claiming is more likely than not. Similarly, the tenant must establish that what they are claiming is more likely than not.
The term “balance of probabilities” means more likely than unlikely, 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 more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “like 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.” (the emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing. I record that the tenant’s neighbour was not called to give evidence.
This is the latest in a number of applications considered by the Tribunal between these parties.
On 8 December 2023, applications 4744769 and 4755329 were dismissed by the Tribunal.
On 18 October 2024, the landlord’s application for termination of the tenancy (5008388) on the grounds that the tenant kept a dog on the premises, was dismissed. That Tribunal order allowed the landlord to file a rehearing application, if within a month of the order, the tenant’s uncle’s dog should be found on the premises. The Adjudicator noted “...I give the landlord liberty to reopen this application by filing an application for a rehearing at which time I will likely be ruling in favour of the landlord and making an order to terminate the tenancy accordingly.”
A rehearing application was filed by the landlord.
The rehearing was considered by the Tribunal. In an order dated 7 November 2024, the landlord’s application for a rehearing was granted and the landlord’s application for termination of the tenancy was considered at this hearing.
At the same time, the tenant has filed a cross application under 5073890. Some of the matters raised in that application have previously been heard by the Tribunal in 5007988, with orders issued on 5 November 2024. That application included issues raised by the tenant about the presence of asbestos, water use due to a leak and a fire hose. Those matters having - previously been litigated before the Tribunal and orders issued, I am not in a position to rehear them.
For the benefit of the tenant, I record that the landlord has today confirmed that they are in the process of gathering the information required to calculate the correct water charges for the period February to April 2024. This to be completed no later than 3 March 2025. The asbestos report provided today indicates that whilst Asbestos is present at the premises, the report writer does not suggest that any work is required. No evidence was provided by the tenant to the contrary. Landlord application
This is a rehearing of the landlord application, and I am required to consider matters afresh.
The tenant lives in a block of three adjoining flats.
The Tenancy Agreement records that the tenant is not to keep pets at the premises. To do so would amount to a breach of the tenant’s obligations under the agreement.
The landlord said that a complaint was received from a neighbour in 2023 that the tenant was keeping a dog or dogs on the premises. A 14-day breach notice was served on the tenant. The landlord was unable to describe the breed of dog or provide a general description of the dog or dogs complained of in 2023. The Tribunal issued an order that the dog or dogs were not to be present at the premises.
Further complaints were received, and the tenant was issued with a 14-day breach notice on 3 September 2024. Photos of the dogs complained of were provided to the landlord and the Tribunal. There are two dogs. They are both mid-sized dogs. They appear to be cross breads. One is a light tan colour and the other mainly black with white markings. These were the dogs at issue in the order and rehearing order.
Since then, the dogs have been photographed and short videos of them were provided by the landlord. The photos and videos were taken on 26 and 27 October 2024, which is after the initial Tribunal order dismissing the landlord’s application for termination.
The landlord was able to say that he had also visited the premises on 19 December 2024 and saw dogs in a car belonging to the tenant which was parked in the tenant’s car park. The landlord said that the dogs “looked like” the dogs that had been seen and photographed earlier.
The tenant said in evidence that he had now complied with the 14-day notice as he had taken the dogs to the RSPCA. The tenant was unable to provide any evidence to confirm this.
The 14-day breach notice dated 3 September 2024 gave the tenant 14 days to comply with the notice. The tenant’s evidence is that the dogs were removed on or about 19 December 2024 when the landlord saw them in the car. Even if that evidence is accepted, the tenant was already in breach of the notice and the landlord entitled to apply for termination of the tenancy.
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) Residential Tenancies Act 1986 (“RTA”).
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 requirement not to keep a pet.
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. The same may apply where there has been a persistent series of breaches, for example, where a tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours.
I am satisfied, based on the evidence considered by the Tribunal over a period of time and a number of hearings, the evidence provided by the landlord in this hearing, including the photographic and video evidence, that the tenant did not comply with the 14-day breach notice. Having come to that conclusion, I must consider whether it would be inequitable not to terminate the tenancy.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court 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 shows that there has been a history of breaches relating to the keeping of dogs and persistent failures to comply by the tenant.
The tenant previously said that the dogs have been removed and would not be allowed back on the premises. Evidence provided at this hearing indicates that this is not correct. I am not persuaded that the tenant will comply with his obligations under the tenancy agreement in the future.
In my view, the tenant has breached the terms of the tenancy agreement deliberately.
The landlord has acted appropriately with regards to the tenant’s breaches throughout.
By a very fine margin, I consider that the gravity of the breach and the proportionality of termination as a response to the tenant’s breach, is such that I do not consider that it would be inequitable not to terminate the tenancy.
The parties confirmed that the tenancy is to end on 3 March 2025 due to landlord requirements. That is a period of 6 weeks from today’s hearing. In those specific circumstances, I consider that to terminate the tenancy so close to its end, would be disproportionate. Tenant claims
The tenant claims relating to asbestos and water leaks are dismissed as they have already been dealt with by the Tribunal in a different application.
The remaining claims are connected and relate to locks and unlawful entry by the landlord or its agents.
The tenant says that the landlord’s contractor has broken into the premises whilst the tenant was absent. No notice was given to the tenant. This occurred in September 2024. The tenant says that he was in the South Island attending to a family funeral. When the tenant returned home, he found that the lock to the rear door had been changed and that he was unable to gain access to the premises.
The landlord said that they needed to get into the premises and that a previous contractor had lost the key. They contacted the tenant’s key worker Malvin Ghandi, as they urgently needed to gain access. They asked the key worker to get approval from the tenant. The key worker responded to the landlord’s request. “He is alg if the key is with me....as long as he can get into the house and nothing is missing”. The term “alg” refers to it being all good, which I take as being consent from the tenant to the landlord gaining access.
The evidence of the parties conflicted. The tenant says that the landlord has obtained access to the rear door and in doing so changed the lock and broke the security chain. The landlord’s evidence was that access was obtained through the front door and that any change to that lock would not have prevented the tenant from gaining access through the rear door.
This is a claim by the tenant. The burden of proving the claim and providing sufficient evidence in support of the claim is on the tenant. I am satisfied that approval for the entry to the premises was obtained from the tenant’s agent and that is confirmed in the copies of the txt messages provided in evidence. The balance of the evidence provided by the parties remains unclear. The evidentiary burden is on the tenant. The tenant having failed to provide sufficient evidence to prove the claim to the civil standard, the tenant claims are dismissed.
The landlord has not been wholly or substantially successful and the landlord’s claim for reimbursement of the filing fee is dismissed.
Both parties have applied for name suppression. Neither party having been wholly or substantially successful in this hearing, the applications for name suppression are dismissed.

Tenancy Tribunal case 5073890 — 14-day notice at Unit/Flat 2, 130B Paihia Road, One Tree Hill, Auckland

At a glance

Tenancy Tribunal case 5073890 — 14-day notice at Unit/Flat 2, 130B Paihia Road, One Tree Hill, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions