What was the outcome of Tenancy Tribunal case 9051804?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9051804?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9051804?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9051804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10652160-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9051804?

The tribunal order states: The application is dismissed.

How much money was awarded in case 9051804?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9051804?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9051804?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10652160-UTA_Tribunal_Order.pdf.

Thorndon, Wellington Tenancy Tribunal Case 9051804 — Unit Titles

Order

The application is dismissed.

Reasons

The hearing was conducted by teleconference.
Chris Okeby attended for the applicant and Andrew Davidson attended for himself.
The parties own adjacent units in this four-unit development.
The applicant’s tenants have complained that the respondent’s tenants noise.
Mr Okeby asks for an order terminating Mr Davidson’s tenants’ tenancy.
Mr Okeby submits that Mr Davidson’s tenants have consistently breached rule 1(c) of the Body Corporate Operational Rules, which provides: 1 1 See Unit Titles Regulations 2011, Schedule 1. Body corporate operational rules 1 An owner or occupier of a unit must not— ... (c) create noise likely to interfere with the use or enjoyment of the unit title development by other owners or occupiers:
Mr Okeby is very concerned about the comfort of his tenants whom he values. He wants his tenants to be content in their unit and he doesn’t want to lose them as tenants. He notes that he has a duty under the Residential Tenancies Act 1986 (RTA), s 38(2) to: (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
Mr Okeby’s tenants have made many complaints. By way of example, they say: Unfortunately, the upstairs neighbours have been noisy again, this time only during the middle of the night. Several nights this week there has been extensive talking, movement, banging, doors slamming etc. starting only after midnight and lasting for some time. It has been loud enough to wake us up and keep us awake. We text...asking for quiet and reminding her of her commitment to be considerate, she informed us her roommate has been working nights and therefore has been coming home late. However, we feel the noise is much more than necessary for someone returning home from a late shift. After this conversation, we were woken up again and for the second time asked...for more effort so late in the night,...was defensive about this and in her words it is due to conflicting schedules. What has us concerned is...believes they have made extensive sacrifices to their lifestyle to keep noise down already. They don't seem to share our understanding that noise in the middle of the night should be at a minimum and that this can be expected from neighbours living so close. We have informed her we will not be communicating over text anymore and would prefer any more necessary communication to be through you. At this stage we aren't asking for anything. We are also aware this type of disagreement is more subjective than having constant noise throughout the week, but we really don't want to put up with this.
Mr Davidson concedes his tenants may have made too much noise when they first moved in in November last year, but says with the tenants’ cooperation, additional occupants at the premises left, and the excessive noise ceased.
Mr Davidson says that his tenants have always been responsive to requests to moderate their noise. Both of his tenants, who are in their early twenties, have demanding work/study obligations and are sensible, intelligent, and mature. They look after the unit well and he has no complaints about them from anyone else. His tenants are living their lives normally and as quietly as they can in consideration of the other tenants’ differing schedules. Discussion
Whether noise is such as it is “likely to interfere with other owners or occupiers” must be assessed by reference to a reasonable standard of what noise can be expected in the modern world in adjacent units of this kind. The rule cannot dictate that occupants observe monastic silence. In that regard, under s 79(d) of the Unit Titles Act 2020 provides that unit owner are: entitled to have quiet enjoyment of his or her unit without interruption by other unit owners or occupiers...
Thus, a unit owner (and presumably their tenants) have a right to make a normal amount of noise consistent with proper enjoyment of the unit. Similarly, a requirement by landlord to a tenant to be excessively quiet would breach the tenant’s reasonable comfort, peace, and privacy rights under s 38(2) of the RTA.
Common sense is required. The occupants live in separate units, but they also live cheek by jowl in a community. Each has a right to make reasonable noise but also to enjoy freedom from unreasonable noise from others.
The evidence consists primarily of the respective tenants’ subjective opinions about the acceptability of noise levels. There is no objective evidence such as recordings of decibel levels. There is really nothing to begin to make an evaluative assessment of whether the noise levels complained of were above the standard that should be applied. It is a “he says, she says” and “he thinks, she thinks” situation.
The noise is not coming from the tenants doing anything outlandish or unlawful. They are not having uproarious parties, or fighting, or screaming. They do not consider they are slamming doors. Noise Control or the Police have not been involved. They are no indicia that Mr Davidsons’s tenants are socially or otherwise irresponsible.
Mr Okeby’s tenants have not complained for about four months, which may indicate the problems are largely resolved. Conclusion
It is not proven that Mr Davidson, or his tenants are in breach of the rules this year at least.
The claim is dismissed. Other
It is not clear that the Tribunal has jurisdiction to grant the order sought of termination. A clear statutory path for that remedy would need to be established. Even if I had been minded to considering termination of the tenancy, it would have breached natural justice to make such an order when affected persons were not included as parties.
Possibly claims like this should be brought against both the unit owner and the tenant, and under the UTA and the RTA simultaneously.
It has not been necessary to explore these issues because I do consider there is a material breach.

Order

The application is dismissed.

Reasons

The hearing was conducted by teleconference.
Chris Okeby attended for the applicant and Andrew Davidson attended for himself.
The parties own adjacent units in this four-unit development.
The applicant’s tenants have complained that the respondent’s tenants noise.
Mr Okeby asks for an order terminating Mr Davidson’s tenants’ tenancy.
Mr Okeby submits that Mr Davidson’s tenants have consistently breached rule 1(c) of the Body Corporate Operational Rules, which provides: 1 1 See Unit Titles Regulations 2011, Schedule 1. Body corporate operational rules 1 An owner or occupier of a unit must not— ... (c) create noise likely to interfere with the use or enjoyment of the unit title development by other owners or occupiers:
Mr Okeby is very concerned about the comfort of his tenants whom he values. He wants his tenants to be content in their unit and he doesn’t want to lose them as tenants. He notes that he has a duty under the Residential Tenancies Act 1986 (RTA), s 38(2) to: (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
Mr Okeby’s tenants have made many complaints. By way of example, they say: Unfortunately, the upstairs neighbours have been noisy again, this time only during the middle of the night. Several nights this week there has been extensive talking, movement, banging, doors slamming etc. starting only after midnight and lasting for some time. It has been loud enough to wake us up and keep us awake. We text...asking for quiet and reminding her of her commitment to be considerate, she informed us her roommate has been working nights and therefore has been coming home late. However, we feel the noise is much more than necessary for someone returning home from a late shift. After this conversation, we were woken up again and for the second time asked...for more effort so late in the night,...was defensive about this and in her words it is due to conflicting schedules. What has us concerned is...believes they have made extensive sacrifices to their lifestyle to keep noise down already. They don't seem to share our understanding that noise in the middle of the night should be at a minimum and that this can be expected from neighbours living so close. We have informed her we will not be communicating over text anymore and would prefer any more necessary communication to be through you. At this stage we aren't asking for anything. We are also aware this type of disagreement is more subjective than having constant noise throughout the week, but we really don't want to put up with this.
Mr Davidson concedes his tenants may have made too much noise when they first moved in in November last year, but says with the tenants’ cooperation, additional occupants at the premises left, and the excessive noise ceased.
Mr Davidson says that his tenants have always been responsive to requests to moderate their noise. Both of his tenants, who are in their early twenties, have demanding work/study obligations and are sensible, intelligent, and mature. They look after the unit well and he has no complaints about them from anyone else. His tenants are living their lives normally and as quietly as they can in consideration of the other tenants’ differing schedules. Discussion
Whether noise is such as it is “likely to interfere with other owners or occupiers” must be assessed by reference to a reasonable standard of what noise can be expected in the modern world in adjacent units of this kind. The rule cannot dictate that occupants observe monastic silence. In that regard, under s 79(d) of the Unit Titles Act 2020 provides that unit owner are: entitled to have quiet enjoyment of his or her unit without interruption by other unit owners or occupiers...
Thus, a unit owner (and presumably their tenants) have a right to make a normal amount of noise consistent with proper enjoyment of the unit. Similarly, a requirement by landlord to a tenant to be excessively quiet would breach the tenant’s reasonable comfort, peace, and privacy rights under s 38(2) of the RTA.
Common sense is required. The occupants live in separate units, but they also live cheek by jowl in a community. Each has a right to make reasonable noise but also to enjoy freedom from unreasonable noise from others.
The evidence consists primarily of the respective tenants’ subjective opinions about the acceptability of noise levels. There is no objective evidence such as recordings of decibel levels. There is really nothing to begin to make an evaluative assessment of whether the noise levels complained of were above the standard that should be applied. It is a “he says, she says” and “he thinks, she thinks” situation.
The noise is not coming from the tenants doing anything outlandish or unlawful. They are not having uproarious parties, or fighting, or screaming. They do not consider they are slamming doors. Noise Control or the Police have not been involved. They are no indicia that Mr Davidsons’s tenants are socially or otherwise irresponsible.
Mr Okeby’s tenants have not complained for about four months, which may indicate the problems are largely resolved. Conclusion
It is not proven that Mr Davidson, or his tenants are in breach of the rules this year at least.
The claim is dismissed. Other
It is not clear that the Tribunal has jurisdiction to grant the order sought of termination. A clear statutory path for that remedy would need to be established. Even if I had been minded to considering termination of the tenancy, it would have breached natural justice to make such an order when affected persons were not included as parties.
Possibly claims like this should be brought against both the unit owner and the tenant, and under the UTA and the RTA simultaneously.
It has not been necessary to explore these issues because I do consider there is a material breach.

Tenancy Tribunal case 9051804 — Unit Titles in Thorndon, Wellington

At a glance

Tenancy Tribunal case 9051804 — Unit Titles in Thorndon, Wellington

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