Tenancy Terminated Due to Neighbour Assault and Harassment

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[2025] NZTT 5191915

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Unit/Flat [ADDRESS], [POSTCODE]

ORDER

1. The tenancy of [NAME] at Unit/Flat [ADDRESS], [POSTCODE] is terminated and possession is granted to [COMPANY], at 5 pm Monday 7 April 2025.

Reasons:

1. Both parties together with the tenant’s partner, [NAME] (“[NAME]”), attended the hearing by telephone.

2. The landlord has applied for termination of the tenancy on the grounds that:

a. [NAME] assaulted a neighbour. See section 55(1)(c)(v) Residential Tenancies Act 1986 (“RTA”).

b. The tenant is in breach of the RTA because the tenant and [NAME] have breached the tenant’s obligation under section 40(2)(c) RTA by causing or permitting interference with the reasonable peace, comfort, or privacy of a person residing in the neighbourhood. See section 56(1) RTA.

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Standard of proof and evidence

3. In considering the claims, the standard of proof is “on the balance of probabilities”. In other words, the landlord must establish with evidence that its claim is more likely than not. Each of the claims has been considered bearing in mind the standard of proof required.

4. The Tribunal does not need to be completely certain, but it needs to be more certain than uncertain. In deciding each claim, all the evidence presented, including oral testimony, has been considered and weighed to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.

5. Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be decided.

6. Contemporaneous documents such as emails, texts, videos and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.

7. While this decision has not referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to proving a claim that was part of the application has been omitted.

8. By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.

9. Section 85(2) of the Residential Tenancies Act 1986 (RTA) requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined the landlord’s application with this requirement in mind.

Claim for assault: the evidence

10. The landlord provided evidence in the form of a written statement from the neighbour who claimed to have been assaulted (“[NAME]”) and from another neighbour (“S”). In addition, both [NAME] and S gave evidence by telephone regarding the incident as follows:

a. When [NAME] was going to visit a neighbour around 6.30 pm on 24 February 2025, the tenant came out of her property and started to abuse [NAME] by

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yelling and swearing. [NAME] then rushed over to [NAME] yelling and swearing in her face and gesturing that he was going to punch her, before pushing her over so that she fell back into a fence and onto the ground.

b. [NAME] provided photographs of her injuries and advised that she suffered grazing and bruising to her elbow, leg, arm and chest.

c. S, who lives at the rear of the tenant’s property, gave evidence at the hearing that she heard yelling from the tenant and [NAME]. One of the neighbours called out “Please come help us. He’s trying to kill us.” S and her husband took their dog out and walked past the front of the tenant’s property and saw [NAME] swing a punch close to [NAME]’s face before he shoved [NAME] in the chest causing her to fall to the ground. S then telephoned the police. S explained that [NAME] was very scared and shaking. S said she herself was “very scared and terrified”.

d. The police were called and [NAME] has been charged with male assaults a female.

11. [NAME] gave the following evidence regarding this incident:

a. He did not touch [NAME]. He believes she fell over on her own when he charged at her and “gave her a fright”.

b. He believes [NAME] was drunk or high on methamphetamine.

c. The bruises in the photographs pre-dated her fall because he saw them before this incident.

d. The tenant, who was present at the incident, confirms his version of events.

Claim for breach of quiet enjoyment: the evidence

12. The landlord provided the following evidence:

a. The evidence in relation to the alleged assault detailed above. [NAME] nor the tenant denied the verbal and intimidatory abuse directed at [NAME], only that he assaulted her.

b. S’s written statement and verbal evidence before the Tribunal:

i. August 2024 [NAME] yelled at and abused her son “throwing racist insults and threatening to harm my dog.

ii. “Since that moment, the erratic abuse, threats of physical harm, and threats to kill my family, have continued to this current date.”

iii. 18 August 2024 [NAME] was yelling “’curry munchers’ and swore further. He demanded that we put our dog down or he would kill our dog.” This will be referred to as Incident #1.

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iv. On 20 October 2024 [NAME] yelled and swore at S and her daughter calling them “Bollywood sluts and bitches” and insisted that we go back to Pakistan. He yelled out that this is his country, and we need to go back to Pakistan. He yelled out that “New Zealand belongs to him; we are just immigrants. He demanded that we stop washing our car because its bothering him, he said that if we continue he would murder us.” The tenant “was in the background supporting him, she was also swearing at us.”

v. On 21 October 2024 at around 1 am [NAME] “shouted and screamed, threatened to harm us, and confronted [S’s husband] in our driveway, hitting him hard on the chest and daring my husband and son-in-law to engage in a fair fight on the street… This event took place between 3 am and 4 am.”

vi. On the same day around 7.30 am “[NAME] emerged in the backyard [and] burst out angrily, swearing and insisting that we go back to Bangladesh/Pakistan. [NAME] frequently abuses us, he emerged with a large piece of wood, challenging my husband to a fight.”

vii. The events of 20 and 21 October 2024, 4 and 6 November 2024 will be referred to as Incident #2.

viii. On Sunday 1 December 2024 “we heard our neighbours making noises and swearing using foul language… He stood outside his home, observing our yard and making such remarks as “You Indians stink!” “You bastards filthy Indians, you decay and smell like urine, damn idiots, screw you!” “…Our entire family has been enduring this disruptive behaviour for over 6 months now.”

ix. “In the past two months (January and February 2025) Police have visited at least 6 times following up on [the tenant] and [NAME]’s continued verbal abuse, threat to harm, threats to kill.”

x. On Tuesday 14 January 2025 three police officers visited S and her family for a welfare check and to follow up on the latest complaint regarding [NAME] being abusive and threatening towards her and her family. Following the police visit [NAME] came out into his back yard and “targeted us once again saying “Oh you fucken bitch, you pulled out my plants”. [NAME] accused us of stealing his cannabis plant and continued to swear at us.” This was supported by video evidence of the incident. This will be referred to as Incident #3.

xi. On 16 January 2025 around 6.55 am [NAME] yelled abuse at S’s house including “Mark my words fucken Indians, very soon I will be on your doorsteps and you’re gonna have no choice, you won’t escape or hide… Mark my words – you guys are gone.”

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xii. [NAME] had threatened S and her family that he had a gun. On Saturday 1 February 2025 at about 6.45 pm [NAME] called out “Hey lady. I have the gun.” He then presented a water gun at S’s husband over the fence and fired it at them. After abusing S and her husband for some minutes he moved into his property and pulled down his pants to expose his bottom to S. This will be referred to as Incident #4 and is supported by video evidence of the incident.

c. The landlord issued notices to the tenant under section 55A RTA as follows:

i. Letter 2 September 2024 in relation to Incident #1 described in the notice as: “On the morning of Sunday the 18th of August 2024 at around 8.15 am, [NAME] was heard behaving aggressively by swearing, shouting insults, and making threats towards your neighbour at [address]. [NAME] is heard yelling and at one point calling the neighbours “Curry-munchers” and to “put your dog’s down.”

ii. Letter 6 November 2024 in relation to Incident #2 described in the notice as:

1. “On 20 October 2024 at approximately 7.00 am. Your partner [NAME] reacted to the noise [from a water blaster] yelling and swearing at [S and her daughter] calling out “Bollywood slut” and continued with the loud screaming.”

2. On 21st October 2022 at approximately 7.30 am. [NAME] was shouting at the neighbour saying the lights from their house was getting into their bedroom, the neighbour shouted back to shut your curtains. [NAME] screamed back saying “fuck off to Pakistan”. When the neighbour responded that he is not from Pakistan and is from Fiji, [NAME] screamed back “fuck off to hell” before retreating inside the house and returning with a large stick waving towards your neighbour’s house saying “I’ll show you where to go”.

3. On 4th November 2024 between 2.42 am and 2.47 am. [NAME] started screaming and swearing ath the neighbour shouting “you fucken crack head, you woke us up, fucken cunt, disrespectful curry munchers fuck off back to Bangladesh. Come over here I am going to fucken smash you up”.

4. On 6th November 2024 at a meeting with the landlord “[NAME] made accusations that the Manager was biased, and made

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threats to shred her. The meeting had to be terminated due to [NAME]’s aggressive behaviour.”

iii. Letter 17 January 2025 in relation to Incident #3 described in the notice as: On 14 January 2025 at approximately 6.31 pm [NAME] “confronted your neighbour, accusing them of taking his cannabis plant, and repeatedly swearing at them. When [[NAME]] saw that his cannabis plant was missing, he started shouting “I know who, yeah I can see you, you fucken cunt.” When the neighbour responded, “did you see us removing it?” [NAME] respinded “Fuck you, it was you”. The neighbour responded that it wasn’t them, however [NAME] continued with the verbal abuse.”

iv. Letter 14 February 2025 in relation to Incident #4 described in the notice as: On Saturday 1 February 2025 at approximately 6.45 pm [NAME] “was in the backyard and shouted to your neighbour to “shut the fuck up with all the gun shit” [NAME] then pointed a water gun at the neighbour and squirted water towards her and said “squirting your arse, that’s all. Send that to Kainga Ora I don’t give a fuck, because you’re just a fucken swag”. [NAME] then said “film all you fucken want, here I’ll give you something to film”. He proceeded to pull down his pants exposing his naked bottom, and said “here you go film that bitch”.

v. The tenant has not challenged any of the notices which each contained the required information about applying to the Tribunal to challenge the notice.

13. [NAME] responded to S’s evidence as follows:

a. Incident #1: He did not recall threatening to kill S’s dog. He believed that they were abusing the dog and he was telling them to stop.

b. Incident #2: He accepted S’s evidence, acknowledged that he was in the wrong and apologised. He believes that his behaviour was caused by sleep deprivation.

c. Incident #3: He accepted S’s evidence and acknowledged that she did not take his cannabis plant and apologised.

d. Incident #4: He does not have a gun and was showing S and her family that the water gun and a nerf gun were the only guns he owns. He denied ever threatening them. He apologised for his behaviour.

Claim for assault: discussion and decision

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14. The allegation of assault is supported by the victim’s written statement and her attending the hearing to give evidence. It was clearly distressing for her to do so. Her evidence was clear, detailed and unequivocal.

15. The victim’s testimony was supported by the independent, eye-witness evidence of S who gave both a written statement and evidence at the hearing consistent with the victim’s account. Her evidence was also clear, detailed and unequivocal.

16. On the other hand, the tenant supported [NAME]’s version of events. As she participated in the barrage of abuse directed by them both at [NAME], this is to be expected. Neither denied verbally abusing [NAME] or that [NAME] rushed at her and frightened her.

17. The allegation against the tenant’s partner is serious and the burden of proof is on the landlord to persuade the Tribunal that the assault took place. The parties’ evidence is evenly balanced. [NAME] and S have given evidence that the assault occurred. [NAME] and the tenant have given evidence that the assault did not occur. In the face of [NAME] and the tenant’s denial, it is not possible on the evidence before it for the Tribunal to determine that it is more likely than not that the assault took place. However, the undisputed evidence that the tenant and [NAME] verbally abused [NAME] and that [NAME] rushed at her with the intention of scaring her contributes to the Tribunal’s decision in relation to the claim for termination based on [NAME]’s breaches of the neighbours’ quiet enjoyment.

18. The landlord’s claim for termination based on [NAME] assaulting [NAME] is dismissed.

19. This does not mean that the Tribunal does not believe [NAME] or S’s evidence, or the evidence of [NAME] and the tenant regarding the assault, only that the Tribunal cannot be persuaded on the evidence before it that the assault was more likely than not.

Claim for breaches: discussion and decision

20. 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.

21. 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 to remedy where the thing done, or its effect, cannot be undone. The breaches of the tenant’s neighbours’ quiet enjoyment were not capable of being remedied.

22. Most of the behaviour complained of was that of the tenant’s partner, [NAME], who lives at the property with the tenant. Section 41(1) RTA provides that the tenant is responsible for anything done by anyone who is in the premises with

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the tenant’s permission if the act constitutes a breach of the tenancy agreement had it been the act or omission of the tenant.

23. The breaches were serious and the landlord has repeatedly warned the tenant about the likely consequences of continued breach.

24. The District Court in [NAME] v [NAME] Corporation DC Porirua CIV-2010-091-110, 28 June 2010 considered that the following were relevant factors in considering a decision under section 56 RTA:

a. Whether the breach was inadvertent or deliberately committed.

b. Whether the breach was within or beyond the tenant’s control.

c. Whether the breach involved an immoral or illegal use of the property.

d. Whether a tenant has made or will make good the breach of the covenant and is able and willing to fulfil his obligations in the future.

e. The conduct of the landlord.

f. The personal circumstances of the tenant.

g. The financial position of the tenant.

h. The gravity of the breach.

i. Whether a breach has caused lasting damage to a landlord.

j. Whether considering the nature of the breach, it is proportionate to evict the tenant.

25. In this case the Tribunal has considered these factors as follows:

a. The breaches by [NAME] were repeated, persistent and over a period of six months. They were intentional. The clear risk of having the tenancy terminated, clearly articulated in the four notices of anti-social behaviour and in the landlord’s attempts to meet with him, have not persuaded [NAME] to modify his behaviour. The tenant has shown no inclination to desist from this behaviour and has persisted in it over a period of at least six months. Through his actions [NAME] has wilfully and knowingly jeopardised his family’s continued occupation of their home.

b. The racial abuse and the repeated threats are especially repugnant and are to be condemned by the Tribunal. The numerous threats to kill S and her family are particularly serious and could have been grounds for termination under section 55(1)(c)(v) RTA. Many of the threats and abuse have been directed at vulnerable women. The breaches are of the most serious nature. The Tribunal has been unable to find that the tenant physically assaulted [NAME], but he and the tenant accepted that they yelled abuse at her and that “[NAME] charged at her and gave her a fright.” There

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is ample evidence that [NAME] and the tenant have abused, threatened and bullied [NAME], S and S’s family.

c. The landlord has repeatedly warned the tenant about the breaches by issuing four formal notices for anti-social behaviour which have been unchallenged by the tenant. It has also tried to engage with the tenant about [NAME]’s behaviour but he has not co-operated. There is nothing in the landlord’s conduct which would make it inequitable for the Tribunal to grant its application.

d. [NAME] accepts two of the incidents. Another of the incidents involving the water gun, abuse and [NAME] exposing his buttocks to S are on video. The other video evidence in relation to the abuse [NAME] projected at S over the missing cannabis plant is clear and unequivocal. The Tribunal accepts this evidence of what occurred during these instances. These four incidents were not isolated incidents. The Tribunal accepts the evidence of S regarding the nasty, threatening, racist abuse they have endured for over six months which was largely not disputed by [NAME] or the tenant during the hearing.

e. The Tribunal accepts [NAME] and S’s evidence of the significant and traumatic impact [NAME]’s behaviour has had upon their lives and their occupation of their homes. Both reported feeling unsafe, having difficulty sleeping and being too afraid to go outside their dwellings. S gave evidence that she and her family each feel “terrified” of [NAME], that she “lived in fear for the safety of my family” and that his behaviour towards her and her family “made her feel helpless” and so sick so that she had to take two days off work.

f. The tenant and [NAME] live at the property with their young children, one of whom has been hospitalised. Termination of the tenancy will mean that they will need to find emergency accommodation. [NAME] made it clear during the hearing that they are not financially well off and advised that he had ADHD and Asperger’s.

g. Termination is not a disproportionate response to behaviour of this nature and duration. The tenant’s neighbours are entitled to their peace and quiet enjoyment and to be relieved from [NAME]’s behaviour. [NAME] and S gave evidence of their being harassed and, on occasion, terrorised by [NAME]’s deliberate behaviour and the seriously detrimental effect it has had on their lives. Termination is a necessary and urgent response given the scale and nature of [NAME]’s behaviour.

26. Considering these factors, it would be inequitable to refuse the landlord’s application for termination. No one should be subjected to abuse of this nature and this level and the Tribunal needs to protect the victims of such abuse by terminating the tenancy so that the neighbours do not have to live in the vicinity

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of a person who has so consistently and repeatedly disregarded the complaints of his victims and the repeated warnings of the landlord.

27. The Tribunal is persuaded on the evidence before it to terminate the tenancy because of the repeated breaches of the quiet enjoyment of the neighbours. Given the nature of those breaches, it is important that the tenancy be terminated in the shortest reasonable time required for the tenant to vacate the property and an order is made accordingly.

G Baker

31 March 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: