Tenancy Tribunal Rejects Landlord's Breach Claim

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[2025] NZTT 5150511

TENANCY TRIBUNAL AT HAMILTON | TE TARAIPIUNARA RETIHANGA KI KIRIKIRIROA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

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

ORDER

1. The application is dismissed.

Reasons:

1. Both parties attended the hearing on 28 February 2025.

2. The tenancy of the premises commenced on 8 April 2024 and was current at the time of this hearing.

3. The law relating to the issues before the Tribunal is contained in the Residential Tenancies Act 1986 (“RTA”).

4. As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the landlord must establish that what they are claiming is more likely than not.

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5. The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

6. The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal. This is significant in this hearing as the parties may find that a claim is not accepted, not because of any doubts about their voracity, but because they have failed to provide the evidence necessary to prove the case to the standard required.

7. As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that:

“like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).

8. The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

Should the tenancy be terminated?

9. 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) RTA.

10. 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.

11.The landlord’s evidence was that the tenant had breached his obligations by ;

• Using marijuana on the premises.

• By threatening the landlord’s staff.

• By refusing the landlord entry to the premises where the landlord was entitled entry.

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12. The landlord served a 14-day notice on the tenant on 24 January 2025. The notice provides;

“I am writing to let you know that you have not kept to your tenancy responsibilities by:

Using marijuana onsite / inside your property. Using illegal substances is strictly prohibited onsite.

Threatened and intimidated staff and having weapons inside property. Not allowing staff entry to all areas in the property. Using threatening body language and language towards staff.

This is not an eviction notice. It is a notice giving you until 14/02/2025 (at least 14 days from but not including today (the Remedy Date) to remedy the situation by doing the following: -Cease use of marijuana on site . Remove all weapons from property. Do not threaten or intimidate staff of Te Runanga o Kirikiriroa.

As landlord to this property, I can apply to the Tenancy Tribunal if this is not remedied on or before the Remedy Date.”

13. The landlord gave extensive evidence of the issues leading up to the issue of the 14 day breach notice which included;

• Smelling marijuana during the course of an inspection in August 2024.

• Receiving complaints from other tenants about the smell of marijuana coming from the premises. (I record that no statement or evidence from these neighbours was provided to the Tribunal by the landlord).

• A staff member seeing a stick and knife at the premises. The tenant explained that the stick was his walking stick, which he had with him at the hearing. The knife was a kitchen knife which was on a coffee table next to a knife sharpener. Both items have a legitimate use. The landlord accepted that neither item was flourished at the staff member by the tenant on 23 January 2025 or was used to threaten the staff member.

• That on 22 January 2025 the tenant yelled at a staff member. The staff member said that they felt unsafe.

14.Having issued the 14 day breach notice, the issue becomes whether the tenant had remedied the situation by 14 February 2025 as required by the notice.

15. The landlord said that they had no evidence of any failure to comply by the tenant by 14 February 2025. There being no evidence to indicate that the tenant had failed to remedy the issues raised in the 14 day breach notice, within the 14 days, the landlord’s application is dismissed.

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16. As the landlord has not been wholly or substantially successful in this matter, I make no order for reimbursement of the filing fee.

[NAME]

03 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: