What was the outcome of Tenancy Tribunal case 5085008?

The tribunal order states: The tenancy of Jose Molina at Unit/Flat Minor Dwelling, 43 Church Street,

How much money was awarded in case 5085008?

Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5085008?

The dispute type was not classified.

Where can I read the official tribunal order for case 5085008?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11256259-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5085008?

The tribunal order states: The tenancy of Jose Molina at Unit/Flat Minor Dwelling, 43 Church Street,

How much money was awarded in case 5085008?

Filing Fee: $27.00 awarded to landlord

What type of tenancy dispute was case 5085008?

The dispute type was not classified.

Where can I read the official tribunal order for case 5085008?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11256259-Tenancy_Tribunal_Order.pdf.

Unit/Flat Minor Dwelling, 43 Church Street, Devonport, Tenancy Tribunal Case 5085008 — Tenancy dispute

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Order

Claims and awards in Tenancy Tribunal application 5085008 — net $27.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$27.00
Total payable by Tenant to Landlord	$27.00

The tenancy of Jose Molina at Unit/Flat Minor Dwelling, 43 Church Street, Devonport, Auckland 0624 is terminated, and possession is granted to Bayleys Real Estate Limited As Agent For Jennifer & Brian Barraclough, as at 11:59 pm on Monday 23 December 2024. The landlord statutorily has 90 days to action this Eviction Order and has agreed not to action this eviction order until 12 noon on Sunday 5 January 2025, unless the tenant engages in any aggressive or threatening conduct or any threat of assault or actual assault to his neighbours or the property owners. If the tenant engages in any such conduct, the conduct must be immediately reported to the Police, the Police must be shown a copy of this sealed Order and the landlord will be able to end the tenancy immediately.

Jose Molina must pay Bayleys Real Estate Limited As Agent For Jennifer & Brian Barraclough $27.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing.

The landlord has applied for termination of the tenancy and reimbursement of the filing fee. Background

The tenancy commenced on 15 December 2023. The parties entered into a fixed term tenancy agreement that was due to end on 12 December 2024.

Section 60A(1) of the RTA states, on the expiry of a fixed-term tenancy of more than 90 days, the tenancy continues as a periodic tenancy with the same terms as the terms contained in the expired tenancy so far as those terms are consistent with a periodic tenancy. As such, the fixed term tenancy became period on 13 December 2024 on the same terms and conditions set out in the fixed term tenancy agreement.

The tenant rents a studio unit above the garage of the main house that is occupied by the property owners.

The house and the studio are on a shared driveway with other residents/neighbours living in houses off that driveway.

The property owners are in their 80’s and have engaged a property manager to manage the tenancy on their behalf.

The property owners have become increasingly concerned about the tenant’s aggressive, disruptive and threatening behaviours and have applied to have his tenancy ended under the threatening to assault provision set out in s55(1)(c) of the RTA.

Should the tenancy be terminated?

The property manager says the owner of the rental premise started to raise concerns about the tenant a few weeks after his tenancy commenced.

The property owner gave a written statement that describes how the tenant has engaged in a pattern of disruptive and aggressive behaviour since a few weeks after the tenancy commenced. The statement records:

How the tenant was polite and friendly when he first arrived here, but after the first few weeks his appearance became unkempt, his manner frequently hostile, suspicious and/or confused, and his behaviour inappropriate. For example: a. Putting foul material into the owner’s mailbox almost every day and denying it until he was witnessed doing so and confronted him about it; b. Refusing to allow access to his flat for scheduled inspections by the property manager and for essential maintenance such as smoke alarm installation; c. Official letters addressed to him being left to pile up in the shared mailbox for long periods and getting aggressive when the owners confronted him about this; d. Being threatening and aggressive when the owner accepted a parcel for him from a courier who came to their door when he was away on Waiheke Island; and e. Being aggressive and threatening to neighbours.

The evidence produced shows the property owners have brought this aggressive, disruptive and threatening behaviour to their property manager’s attention via text messages and phone calls and the property manager has issued some 14-day notices to the tenant on 26 and 27 November 2024 for three specific incidents that the property owners’ neighbours had just reported to them as follows: a. At some time in the beginning of September 2024, one of the tenant’s neighbours has reported that she was walking on Mount Victoria with her dog and was accosted by the tenant. Mount Victoria is behind the rental premise. The neighbour wrote a statement that confirmed “she was walking her 2 dogs up Mt Victoria in Devonport, when the tenant approached in her the opposite direction on the track that circles the base of the mountain. One of her dogs casually approached him as he passed (it is an off-leash dog area) and gave him a sniff. The tenant abruptly responded to this by kicking the dog, violently and triggered frantic barking from the dog in response. The tenant then lunged at her and grabbed her by her head, pulling at her hair and calling her “sweetheart” and whispering something else that she didn’t understand, but he was forced to let her go as her dog leapt on him, barking and growling furiously. The tenant scuttled off, nervous of the dog and she abruptly hurried in the opposite direction. She could hear him yelling something as she left. She also says she remembers vividly, the wild look he had in his eyes during this encounter. It was very frightening and she thought to herself she was damn lucky to have the dogs with her, as without them something far more sinister could have occurred”. She also stated that she has had two other incidents with the tenants as follows: i. “She was again up the mountain around a month ago. The tenant began yelling something, but her dog chased him off immediately and he ran away”; and ii. “The third time was on Wednesday 20 November 2024, when she saw him come out of Jennifer Barraclough’s flat. It was then that I realised he resided there. On this particular day he yelled at her that she was a Nazi, and she once again had the dogs with her, this time leashed, who both began barking at him furiously. Again she was able to leave abruptly down the driveway”. b. The 20 September 2024, when another neighbour on the shared driveway complained to the property owners that the tenant had also called him a Nazi and had been abusive and threatening to him for no reason; c. On 26 November 2024, when a third neighbour on the shared driveway complained to the property owners that the tenant had waived a knife out the window at him and threatened him, his wife and his family. He stated that the tenant was aggressive and menacing and he was concerned for his and his family’s safety given they live next door. The neighbour reported the incident to the New Zealand Police and produced the Police report with his complaint to the property manager. At the end of his report to the Police the neighbour says the tenant “... is clearly disturbed and has proven capable of violence. We are urging the police to take action before he seriously harms anyone in the area. Everyone mentioned in this report is scared for their safety”.

The property manager gave evidence the tenant had also been engaging in other anti-social behaviour by making a lot of noise that disrupted the neighbours. He says he did not issue 14-day notices for this conduct, although he has complaints from the neighbours of chanting and singing in a ritualistic manner, as the tenancy was fixed term at the time and the tenancy could not be ended for anti-social behaviour.

The property manager also produced evidence that on 2 July 2024, the tenant threatened the property owners, and they were so afraid of him they called the New Zealand Police and then they witnessed the tenant being taken to the hospital by mental health professionals and the Police in hand cuffs. The property owners have confirmed this in a written statement to the Tribunal and the property manager produced text messages that sh.

The property owners have also stated they would have reported more of the tenants aggressive and threatening conduct but they are afraid if they do he will retaliate and injure them badly.

The tenant produced bank statements and You Tube recordings that prove he was on Waiheke Island from 31 July to 15 September 2024 and that he could not have engaged in the assault on the neighbour at the beginning of September 2024 as she claims. In addition, he denied ever having engaged in any of the conduct complained of, except the singing and chanting. He says he is an artist and he has been recording some of his singing content for an album.

The property manager stated that the bank records show the tenant was coming and going from Waiheke from 31 July to 15 September 2024 and that some transactions were from Auckland vendors. The tenant explained the transitions were made on Waiheke but are recorded by vendors registered in Auckland.

The property manager also confirmed the neighbour that reported the three dog incidents to him and the property owners could not remember the exact dates of the incidents so in relation to the first incident he recorded it in the 14 day notice as being the beginning of September 2024. He says the neighbour indicated to him the incident had occurred in the first two to three weeks. The tenant was back in Auckland by 15 September 2024. I am satisfied on the balance of probabilities the incident either occurred sometime after his return to Auckland, or in those days when the transactions on his bank account indicate purchases made in Auckland, such as the 4 Square Britomart transaction on 3 September 2024 or the My Washing Hub Papakura transaction on 10 September 2024. While the Washing Hib transaction may be for a Waiheke based vendor that invoices under a Papakura I find it more likely than not the transaction on 3 September 2024 was made by the tenant at the Britomart 4 Square.

The Residential Tenancies Act 1986 (“RTA”) applies to this applictaion, and of particular relevance is section 55. Section 55 provides the Tribunal with the power to order termination of a tenancy in certain circumstances, including where there is an assault or threat to assault from the tenant. That provision holds: 55 Termination on non-payment of rent, damage, or assault (1) Subject to subsection (2), on any application made to it under this section by the landlord, the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that— ... (c) the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, any of the following persons: (i) the landlord or any member of the landlord’s family: (ii) the owner of the premises or any member of the owner’s family: (iii) any agent of the landlord: (iv) any occupier of any building of which the premises constitute a part: (v) any neighbour of the premises or of any building of which the premises constitute a part. ... (2) The Tribunal may refuse to make an order under subsection (1) if, but only if, it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies (but see also section 78A(3)(b)).

Justice Keane commented in Collins v Housing New Zealand, High Court, 2004 CIV -409-717 Christchurch, that to threaten to assault means just what it says: it is an expression of intent to do harm to another person by use of force. The fact of the threat can be enough. Even under the criminal law, there is no need to intend to act on the threat, or to have the capacity to act on it; or that it be to, or be passed on to, the person to whom the threat relates. He also said that under the criminal law what must be proved is the intent that the threat be taken seriously by the person to whom it is made. How far that applies under the RTA is another question. However, the intent of section 55(1)(c) is to protect the classes of persons referred to such as the landlord’s agent and neighbours. In this context, the fact of a threat is enough.

The tenant’s behaviour during the hearing today was not inconsistent with the behaviour he denies perpetrating during the tenancy. He was overbearing, over talked myself and the other party and was aggressive to me and the other party. It was a challenge to keep the tenant under control for a lot of the hearing.

I find, on the balance of probabilities the tenant engaged in all of the threats of assault reported to the property manager and the property owners by the neighbours and that the tenant assaulted one neighbour sometime in the first three weeks of September 2024 when he “...lunged at her and grabbed her by her head, pulling at her hair and calling her “sweetheart” and whispering something else that she didn’t understand, but he was forced to let her go as her dog leapt on him, barking and growling furiously”.

I am also satisfied the tenant has engaged in threatening, aggressive, anti- social and disruptive conduct to the property owners that would make it unconscionable for me not to terminate the tenancy in all the circumstances.

The tenant argues that there are no justifiable grounds for me to terminate the tenancy as there are no videos proving he engaged in the conduct complained of. He says the neighbours dislike him and have made up all the incidents and have conspired with the property owner to terminate his tenancy.

If there had been any isolated incident reported that was not supported by other example of the same type of conduct, I may agree with the tenant. However, the number of neighbours that have not only experienced these threats of assault and aggressive conduct but have reported them to the Police has satisfied me that it is more likely than not the tenant has engaged in the conduct complained of. His conduct at the hearing today also supports my finding that more likely than not the tenant engaged in the conduct complained of, conduct that is in breach of s55 (1)(c)(v) of the RTA.

As explained at the hearing, 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 (in this case, the tenant) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

As noted 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.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular 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 landlord’s claim for termination of the tenancy, based on a breach of s55 (1)(c)(v) of the RTA, has been proven to this required civil burden of proof standard and its clam for termination of the tenancy is upheld. The tenancy terminated.

The landlord has agreed, given we are going into the Christmas and New year period, that the ending of the tenancy will be delayed until 12 noon on Sunday 5 January 2025.

If the tenant engages in any further aggressive or threatening conduct or any threat of assault or actual assault, the conduct must be immediately reported to the Police, the Police shown a copy of this sealed Order and the landlord will be able to end the tenancy immediately. Reimbursement of the filing fee

Because Bayleys Real Estate Limited As Agent For Jennifer & Brian Barraclough has wholly succeeded with the claim I must reimburse the filing fee.

Order

Claims and awards in Tenancy Tribunal application 5085008 — net $27.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$27.00
Total payable by Tenant to Landlord	$27.00

Jose Molina must pay Bayleys Real Estate Limited As Agent For Jennifer & Brian Barraclough $27.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing.

The landlord has applied for termination of the tenancy and reimbursement of the filing fee. Background

The tenancy commenced on 15 December 2023. The parties entered into a fixed term tenancy agreement that was due to end on 12 December 2024.

The tenant rents a studio unit above the garage of the main house that is occupied by the property owners.

The house and the studio are on a shared driveway with other residents/neighbours living in houses off that driveway.

The property owners are in their 80’s and have engaged a property manager to manage the tenancy on their behalf.

Should the tenancy be terminated?

The property manager says the owner of the rental premise started to raise concerns about the tenant a few weeks after his tenancy commenced.

The property owners have also stated they would have reported more of the tenants aggressive and threatening conduct but they are afraid if they do he will retaliate and injure them badly.

The landlord has agreed, given we are going into the Christmas and New year period, that the ending of the tenancy will be delayed until 12 noon on Sunday 5 January 2025.

Because Bayleys Real Estate Limited As Agent For Jennifer & Brian Barraclough has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 5085008 — Tenancy dispute at Unit/Flat Minor Dwelling, 43 Church Street, Devonport,

At a glance

Tenancy Tribunal case 5085008 — Tenancy dispute at Unit/Flat Minor Dwelling, 43 Church Street, Devonport,

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions