What was the outcome of Tenancy Tribunal case 5179952?

The tribunal order states: Brooke Sherril Smith to pay Shelter Realty Limited T/A Harcourts Shelter Realty

How much money was awarded in case 5179952?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $220.00 awarded to landlord

What type of tenancy dispute was case 5179952?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5179952?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11618162-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5179952?

The tribunal order states: Brooke Sherril Smith to pay Shelter Realty Limited T/A Harcourts Shelter Realty

How much money was awarded in case 5179952?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $220.00 awarded to landlord

What type of tenancy dispute was case 5179952?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5179952?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11618162-Tenancy_Tribunal_Order.pdf.

Unit/Flat 8A, 30 Westward Ho Road, Glen Eden, Auckland Tenancy Tribunal Case 5179952 — Rent arrears

Claims and awards in Tenancy Tribunal application 5179952. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 24 March 2025	$220.00		Rent arrears to 24 March 2025
Filing fee reimbursement	$27.00		Filing fee reimbursement

Order

Brooke Sherril Smith to pay Shelter Realty Limited T/A Harcourts Shelter Realty As Agent Beans Investment $247.00 immediately, calculated as shown in the table below.
The landlord’s application for termination of the tenancy is dismissed.

Reasons

Both parties attended the hearing.
The parties signed a one-year fixed-term tenancy agreement that began on 07 August 2024 which is due to end on 05 August 2025.
The landlord has applied to the Tribunal for an order terminating this tenancy for repeated breaches of section 40(2)(c) of the Residential Tenancies Act, 1986 (the “RTA”). Under this section, a tenant shall not cause or permit any 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, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.
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 40(3A)(d) and Schedule 1A Residential Tenancies Act 1986.
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.
The landlord is seeking termination and not exemplary damages as a remedy for the breach. The breaches
The landlord received a report filed to the Body Corporate by a neighbour of the tenant on 6 February 2025, which states the tenant was walking around in a public area of the complex, swinging her arms, crying and swearing at and being abusive to other people in the complex.
On 7 February 2025, the landlord served the tenant a 14-day notice to remedy a breach, under section 56 of the RTA.
The tenant stated in response that other people in the complex are constantly watching her and she feels harassed. She stated that she never received the section 56 notice to her email inbox.
I note however that at the top of the email the landlord says she sent to the tenant, is an email address that the tenant confirmed is her current email address.
On Monday 24 February 2025, the landlord received a report filed to the Body Corporate by a different neighbour of the tenant. The report was of the tenant screaming and making abusive threats to a person, or everyone in general, such as “I’ll kill you”. The tenant was also smashing her clothes rack into the fence.
In response the tenant said she didn’t do this, and the other people should mind their own business.
The landlord also claimed that on 25 February 2025, the tenant had walked out to the carpark naked and then started rummaging through her car. A contractor had witnessed this and stated that he felt uncomfortable in her presence. The landlord then amended “naked” to walking around in her bra and undies. The landlord produced two videos showing this.
In response the tenant stated the video shows her wearing her bikini and carrying a towel. There is a pool at the complex.
Having seen and heard from both parties, I determine the information regarding these three events is largely reliable and is largely accurate in describing the tenant’s behaviour.

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 capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
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 of 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 landlord considers that because the tenant has breached section 40(2)(c) subsequent to a 14-day notice to remedy being served, the tenant is caught by section 56(1)(b) (breach capable of remedy) of the RTA and the tenancy should be terminated.
I am not persuaded of this for three reasons. The first is that because the tenant’s actions are a discrete event rather than a continuing event, I do not consider they can be accurately classed as a breach capable of remedy. Once the event is passed, nothing can undo the event. That is the case with this tenant’s actions. An abusive event is by its nature different to a pile of rubbish that has been left on a driveway and once removed all associated harm is finished with. In this case, the tenant cannot act to undo the breach that has been complained of.
The second reason is that once the 14-day period has passed without further incident, I consider the 14-day notice to have run its course. An event that then happens after the end of the 14-day notice no longer qualifies as a continuing breach within the 14-day period. The alternative to this is that if a 14-day notice was a correct way to deal with an “anti-social” event, then once the 14-day notice had been served any further anti-social even, even years later, would still qualify as a breach of the same 14-day notice. This would be inconsistent with the provision under section 55A RTA relating to antisocial behaviour in periodic tenancies, three of which within a 90-day period can lead to termination.
The purpose of the requirements of section 55A is that the tenant receives fair warning regarding their behaviour, is given a reasonable opportunity to remedy the behaviour, and the right to have breaches stale and time out after 90-days.
It is my view that an antisocial event by a tenant is not a breach capable of remedy. It is also my view that the three events given by the landlord do not qualify within a 14-day window.
If I am wrong on both these accounts, I am still of the view that because the communications by the landlord with the tenant are nowhere near as robust as the requirements set out in the section 55A antisocial behaviour provisions, it would be inequitable to terminate the tenancy for these breaches. That is to say the tenant has not been given notice that they will get three warnings, when the notice period is running from and to, how many other incidents have been recorded, etcetera.
In my view the landlord is attempting to take the section 55A antisocial behaviour provision that applies only to periodic tenancies (for which termination is available) and shoehorn it into a section 40(2)(c) breach in a fixed-term tenancy for which the prescribed remedy is exemplary damages. The landlord is attempting to do this by applying a section 56, 14-day notice breach to the events that have occurred.
But in my view, for the above reasons “the shoe just doesn’t fit”.
Because the landlord has partially succeeded with their claims I have ordered reimbursement of the filing fee.

Claims and awards in Tenancy Tribunal application 5179952. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 24 March 2025	$220.00		Rent arrears to 24 March 2025
Filing fee reimbursement	$27.00		Filing fee reimbursement

Order

Brooke Sherril Smith to pay Shelter Realty Limited T/A Harcourts Shelter Realty As Agent Beans Investment $247.00 immediately, calculated as shown in the table below.
The landlord’s application for termination of the tenancy is dismissed.

Reasons

Both parties attended the hearing.
The parties signed a one-year fixed-term tenancy agreement that began on 07 August 2024 which is due to end on 05 August 2025.
The landlord has applied to the Tribunal for an order terminating this tenancy for repeated breaches of section 40(2)(c) of the Residential Tenancies Act, 1986 (the “RTA”). Under this section, a tenant shall not cause or permit any 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, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.
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 40(3A)(d) and Schedule 1A Residential Tenancies Act 1986.
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.
The landlord is seeking termination and not exemplary damages as a remedy for the breach. The breaches
The landlord received a report filed to the Body Corporate by a neighbour of the tenant on 6 February 2025, which states the tenant was walking around in a public area of the complex, swinging her arms, crying and swearing at and being abusive to other people in the complex.
On 7 February 2025, the landlord served the tenant a 14-day notice to remedy a breach, under section 56 of the RTA.
The tenant stated in response that other people in the complex are constantly watching her and she feels harassed. She stated that she never received the section 56 notice to her email inbox.
I note however that at the top of the email the landlord says she sent to the tenant, is an email address that the tenant confirmed is her current email address.
On Monday 24 February 2025, the landlord received a report filed to the Body Corporate by a different neighbour of the tenant. The report was of the tenant screaming and making abusive threats to a person, or everyone in general, such as “I’ll kill you”. The tenant was also smashing her clothes rack into the fence.
In response the tenant said she didn’t do this, and the other people should mind their own business.
The landlord also claimed that on 25 February 2025, the tenant had walked out to the carpark naked and then started rummaging through her car. A contractor had witnessed this and stated that he felt uncomfortable in her presence. The landlord then amended “naked” to walking around in her bra and undies. The landlord produced two videos showing this.
In response the tenant stated the video shows her wearing her bikini and carrying a towel. There is a pool at the complex.
Having seen and heard from both parties, I determine the information regarding these three events is largely reliable and is largely accurate in describing the tenant’s behaviour.

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 capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
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 of 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 landlord considers that because the tenant has breached section 40(2)(c) subsequent to a 14-day notice to remedy being served, the tenant is caught by section 56(1)(b) (breach capable of remedy) of the RTA and the tenancy should be terminated.
I am not persuaded of this for three reasons. The first is that because the tenant’s actions are a discrete event rather than a continuing event, I do not consider they can be accurately classed as a breach capable of remedy. Once the event is passed, nothing can undo the event. That is the case with this tenant’s actions. An abusive event is by its nature different to a pile of rubbish that has been left on a driveway and once removed all associated harm is finished with. In this case, the tenant cannot act to undo the breach that has been complained of.
The second reason is that once the 14-day period has passed without further incident, I consider the 14-day notice to have run its course. An event that then happens after the end of the 14-day notice no longer qualifies as a continuing breach within the 14-day period. The alternative to this is that if a 14-day notice was a correct way to deal with an “anti-social” event, then once the 14-day notice had been served any further anti-social even, even years later, would still qualify as a breach of the same 14-day notice. This would be inconsistent with the provision under section 55A RTA relating to antisocial behaviour in periodic tenancies, three of which within a 90-day period can lead to termination.
The purpose of the requirements of section 55A is that the tenant receives fair warning regarding their behaviour, is given a reasonable opportunity to remedy the behaviour, and the right to have breaches stale and time out after 90-days.
It is my view that an antisocial event by a tenant is not a breach capable of remedy. It is also my view that the three events given by the landlord do not qualify within a 14-day window.
If I am wrong on both these accounts, I am still of the view that because the communications by the landlord with the tenant are nowhere near as robust as the requirements set out in the section 55A antisocial behaviour provisions, it would be inequitable to terminate the tenancy for these breaches. That is to say the tenant has not been given notice that they will get three warnings, when the notice period is running from and to, how many other incidents have been recorded, etcetera.
In my view the landlord is attempting to take the section 55A antisocial behaviour provision that applies only to periodic tenancies (for which termination is available) and shoehorn it into a section 40(2)(c) breach in a fixed-term tenancy for which the prescribed remedy is exemplary damages. The landlord is attempting to do this by applying a section 56, 14-day notice breach to the events that have occurred.
But in my view, for the above reasons “the shoe just doesn’t fit”.
Because the landlord has partially succeeded with their claims I have ordered reimbursement of the filing fee.

Tenancy Tribunal case 5179952 — Rent arrears at Unit/Flat 8A, 30 Westward Ho Road, Glen Eden, Auckland

At a glance

Tenancy Tribunal case 5179952 — Rent arrears at Unit/Flat 8A, 30 Westward Ho Road, Glen Eden, Auckland

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions