What was the outcome of Tenancy Tribunal case 5107328?

The tribunal order states: The tenancy of Danielle Alexandra Albie Leaf-Marsh at 35 Parera Crescent,

How much money was awarded in case 5107328?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5107328?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 5107328?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11299063-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5107328?

The tribunal order states: The tenancy of Danielle Alexandra Albie Leaf-Marsh at 35 Parera Crescent,

How much money was awarded in case 5107328?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5107328?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 5107328?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11299063-Tenancy_Tribunal_Order.pdf.

35 Parera Crescent, Tikipunga, Whangarei 0112 Tenancy Tribunal Case 5107328 — Harassment

Order

The tenancy of Danielle Alexandra Albie Leaf-Marsh at 35 Parera Crescent, Tikipunga, Whangarei 0112 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, at 11.59 pm on Tuesday 28 January 2025.

Reasons

Both parties attended the hearing held by telephone today.
The tenant lives with her six children the new built house in a new subdivision. The house is one of 16 properties managed by the landlord on the tenant’s street. The tenancy began in June 2024.
The landlord seeks termination of the tenancy on the following grounds: a. The tenant has engaged in antisocial behaviour and three or more notices have been given to the tenant under s 55A of the Act. b. That the tenant has failed to comply with a breach notice given on the December 2024, that the tenant removes her two dogs from the premises. (the landlord did not advance this ground at hearing today as it acknowledged that it had not checked whether or not the tenant had complied). c. That the tenant or people on the property with the tenant’s permission have caused interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants by playing loud music, excessive barking of dogs on numerous occasions and the tenant continues to play loud music even after repeated warnings.
The tenant wants to stay in the tenancy she says: a. She likes living in the property. Her children are settled there, and it is close to their schools. b. She gets on well with her neighbours. c. She tried to rehome her dogs but was unable to rehome them and made the difficult decision to put them down, so that she could remain in the tenancy and comply with the 14-day breach notice that was given requiring her to remove the dogs. d. That the noise issues often happen when she is not there by her children and visitors playing loud music. She says that she has stopped having visitors and has told her children that they cannot play loud music. e. That the noise control people have been called out to her home and on some occasions have either found no noise or that it was not originating from her home.
The Tribunal can only terminate the tenancy if one or more of the grounds in the RTA are made out. The landlord has the burden of proving on the balance of probabilities that the grounds have been made out. The application for termination under s55A.
Subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied: a. on 3 separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission, engaged in anti-social behaviour in connection with the tenancy; and b. on each occasion the landlord gave the tenant written notice— i. describing clearly which specific behaviour was considered to be anti-social and (if known to the landlord) who engaged in it; and ii. advising the tenant of the date, approximate time, and location of the behaviour; and iii. stating how many other notices (if any) the landlord has given the tenant under this paragraph in connection with the same tenancy and the same 90-day period; and iv. advising the tenant of the tenant’s right to make an application to the Tribunal challenging the notice and; c. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.
The Act confirms that antisocial behaviour includes harassment or any act (whether intentional or not) that reasonably causes alarm, distress or nuisance that is more than minor.
The landlord gave the first notice on the 30 September 2024. The antisocial behaviour complained about occurred on the 21 September 2024 and was described as loud music, and that noise control had attended and issued a warning. The first notice complied with the procedural requirements of the RTA, although it did not tell the tenant that she could challenge the notice in the Tribunal which is a procedural requirement of s55A(2)(b)(iv) RTA.
The second notice was given on the 11 October 2024 and related to an incident on the 9 October, again for loud noise coming from the property, when noise control attended the property the noise control officers say that they were threatened by a visitor at the property. The second notice complied strictly with the procedural requirements of the RTA.
The third notice was given on the 10 December 2024 and related to an incident on the 8 November 2024 again relating to excessive noise from the property. Again, noise control attended. The third notice complied strictly with the procedural requirements of the RTA.
Whilst I am satisfied that the tenant engaged in the anti-social behaviour complained about in the notices, and that the behaviour was more than a minor nuisance to the tenant’s neighbours. I am not terminating the tenancy under this section of the Act, because of the deficiencies in the first notice which did not tell the tenant about the right to challenge the notice in the Tribunal. The application for termination under s56 RTA.
I am however satisfied that the tenant has on numerous occasions breached s40(2)(c) RTA by causing or permitting an interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, by playing excessively loud music, or allowing her dogs to bark continuously. This noise has been pervasive and has caused considerable distress to her neighbours. The landlord tells me that in the six months since this tenancy has begun to when it filed its application it received 13 separate notifications from its other tenants complaining of noise at the property. These notifications were not from the same person/ people.
The landlord requested and received a list of notifications to the local council for noise issues. There are numerous complaints relating to both music and dogs barking. Whilst there were some occasions when the noise control officers investigated and found no noise coming from the house, there were many instances where the complaints were found to be justified and the Council issued the tenant with an Excessive Noise Disturbance notice. As a result of the number of complaints Council issued the tenant with an abatement notice on the 11 November 2024. Abatement notices are usually only given when there is a continuous breach.
Even after the abatement notice and the application to the tribunal for termination was made in December, the tenant continued to play loud music causing distress to her neighbours. There was a party on the 16 December where noise control was called.
The landlord received three separate complaints about loud music from a party at the tenant’s property on Christmas Eve. One of the landlord’s tenants said when making a complaint on Christmas day that it was “Psychological TORTURE long exposed penetrating sound and shaking that does not stop.”
Again, on the 2 January there appears to have been another party at the home with loud music, one complaint to the landlord said ““Party past midnight. Theme with these folks. Loud bass hear block away” and another neighbour complained saying, “Music and bass. Again. Insanity, this is not an acceptable way to live and state housing needs to take accountability for its tenants and the impact on the community.”
I am therefore also satisfied that the tenant breached s40 (2)(c) RTA by playing loud music on Christmas Eve and the 2 January which affected her neighbours peace and enjoyment of their homes.
The continued breaches of s40(2)(c) are not capable of remedy in that once they occur, then they cannot be undone. S40(2)(c) RTA is a promise by the tenant NOT to do something (it is a negative covenant) and the Court has held that it is not necessary to give notice to remedy a negative covenant. Therefore, I do not consider that the landlord was required to give the tenant notice to require her to remedy the noise breaches. I consider that even if that was the case that the notices given under s55A on the 30 September, 11 October and the 10 December 2024 and this application put the tenant on notice that she needed to not play loud music so as to disturb her neighbours.
When determining whether to terminate for the breach under s56 RTA, the Tribunal must consider whether that 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 District Court in Vincent Dean Huff v City Central Property Management [2020] NZDC 19299 (13 September 2020) set out a range of factors that would be relevant to the question of equitability, being:
The history of the tenancy.
Whether there had been a persistent failure after repeated warnings.
Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future.
Whether the breach was inadvertent or deliberately committed.
The conduct of the landlord.
The gravity of the breach.
Whether termination is a proportionate response to the breach.
Taking these factors into account I consider it equitable to terminate the tenancy for the following reasons: a. This is a short tenancy where there have been numerous complaints about noise. b. Those complaints have continued despite repeated visits from the Council noise officers, tenancy managers, anti-social breach notices, an application to the Tribunal and an abatement notice from the Council. c. I am not satisfied that the tenant will not commit other breaches. Whilst I acknowledge that the tenant has in the past week taken the grave step of putting her dogs down in an attempt to remedy the breaches relating to her dogs. She has not satisfied me that she is unlikely to play loud music or allow others to play loud music. d. The tenant remains part of a community, and the provisions of s40 (2)(c) RTA are designed to allow neighbours to live together harmoniously. It is clear from the written complaints that the landlord received from multiple complaints that the neighbours have had enough of the loud music. It is persuasive and intrusive of their enjoyment of their properties. The tenant lacked insight into the effect of her music on her neighbours. This is evidenced by the repeated bass being played on Christmas Eve even after the tenant was aware that the landlord was seeking termination of her tenancy for noise. It demonstrates to me that the tenant has no regard for how her actions affect her neighbours. e. I consider that the termination is a proportionate response to the breach. I say this because of the number and frequency of the noise breaches. They are ongoing and wearying on this new community.
The tenancy is terminated on the 28 January 2025. In order to allow the tenant some time to find alternative accommodation for her children the tenancy will not terminate immediately.

Tenancy Tribunal case 5107328 — Harassment at 35 Parera Crescent, Tikipunga, Whangarei 0112

At a glance

Tenancy Tribunal case 5107328 — Harassment at 35 Parera Crescent, Tikipunga, Whangarei 0112

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions