Tenancy Terminated for Persistent Neighbour Disturbance

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[2025] NZTT 5160111

TENANCY TRIBUNAL - [Event location suppressed]

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. The tenancy of [NAME] at [Tenancy address suppressed] is terminated, and possession is granted to [COMPANY], at 11.59 pm on Thursday 20 February 2025.

Reasons:

1. The landlord attended the hearing. The tenant did not answer the calls made to her phone. The tenant was properly served and received reminders before the hearing.

2. The landlord has applied for termination of the tenancy for breach of the tenant’s obligations because she has persistently disturbed her neighbours’ peace comfort and privacy. Section 40(2)(c) of the Residential Tenancies Act 1986 (RTA) states the tenants 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.

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Should the landlord have served a 14 day notice?

3. The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable – very unfair - to refuse to terminate. See section 56(1) RTA.

4. 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.

5. 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.

6. There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours.

7. Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent.

8. The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy:

[46] Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). The breach irremediably arises when the specified failure occurs.

[47] It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.

9. It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy.

10. The landlord provided me with a list of calls to the Kainga Ora call centre where neighbours have made complaints about the tenant. There are around ten calls in the last four months. The police have provided an email in support of the application dated 25 October 2024 which states that since the tenancy started in 2022 there have been:

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• 14 family harm callouts with the 5 most recent having the tenant as a mutual participant or aggressor

• 5 breach of peace callouts, including fighting, slamming doors, broken windows, things being smashed at the address

• 3 alcohol/intoxication callouts including yelling and screaming at the tenancy premises.

11. There is also evidence from the Wellington City Council that the tenant has burned rubbish on more than one occasion and was warned not to do this again.

12. The tenant’s tenancy services manager gave evidence as a witness that there were call centre records of screaming and banging and a broken window from two days ago, and the police were called.

13. Two neighbours gave evidence as witnesses. They said they have been affected by loud music, screaming, items being smashed, people fighting and other disruptive behaviour at all hours of the day and night. The affect for them has been worry, lack of sleep, concerns about the tenant’s safety, concerns about their own safety, and the stress of having to constantly call the landlord and the police.

14. Taken together, I find the tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours. This is an occasion where the landlord is not required to serve a 14 day notice.

Should the tenancy end?

15. In [NAME] v [NAME] Management the District Court considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy:

• The history of the tenancy.

• Whether there had been a persistent failure after repeated warnings.

• Whether the history of breaches is such that it is 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.

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16. I have considered the submissions and the evidence provided by the landlord. The history of the tenancy shows that the tenant has been disturbing the neighbours since she moved in.

17. The landlord sent five letters in 2024 explaining that the tenant had breached the quiet enjoyment of people living in the neighbourhood and asking her to modify her behaviour, yet there are complaints as recent as two days ago. It seems most likely to me there has been a persistent failure by the tenant to modify her behaviour despite repeated warnings. It seems most likely to me this disruptive behaviour was carried out deliberately and will continue in the future.

18. I find it would be inequitable to refuse to terminate the tenancy. Given the gravity of the breach the tenancy ends at midnight tonight.

Suppression

19. Out of consideration for the neighbours I have suppressed the address. All other details are published because there is public interest in the management of social housing. See section 95A RTA.

.

[NAME] 20 February 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: