Tenancy Tribunal Rejects Landlord's Request to Terminate Tenancy

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[2025] NZTT 5260019

TENANCY TRIBUNAL AT [Event location suppressed]

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [Tenancy address suppressed]

AMENDED ORDER

1. This order supersedes and replaces the unfinished order dated 28 May 2025 sent to the parties in error.

2. The Tribunal orders suppression of the Tenant name and identifying details.

3. The landlord’s application to terminate the tenancy is dismissed.

Reasons:

1. Both parties attended the hearing. The tenant was assisted by a [NAME] from Downtown Community Ministry.

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

Should the tenancy be terminated?

3. 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 (RTA).

4. 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.

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5. 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.

6. 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.

7. The landlord claims that the tenant has breached her obligations under section 40(2)(c) RTA which provides that a tenant must 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.

Landlord evidence

8. The tenant rents a flat in a multi-level social housing complex. The flat is surrounded by neighbouring flats.

9. The tenancy started in September 2020. The landlord says that throughout the tenancy, the landlord has issued numerous 14-day notices following complaints from other tenants in the complex. They say that a pattern has developed where the tenant and/or [NAME] engage in noisy, disruptive behaviour. The behaviour usually stops after the landlord serves a 14-day notice only to be repeated days or weeks later. The landlord did not produce copies of previous 14-day notices or other documentary evidence (such as diary notes/logs, witness statements) of previous complaints. However, the landlord prepared a timeline of some complaints made between 30 June and 21 July 2024. They document four complaints received from neighbours about a loud stereo being played; screaming, door slamming, the smell of drugs being smoked, and other people staying or visiting the property carrying out the same types of disruptive behaviour. The behaviour occurred at different times of the day between 7.25am and 6.59pm. The landlord says that as a result of these complaints other tenants in the complex asked to be transferred to other properties. However, the landlord has not previously brought an application to the Tribunal in relation to the tenancy.

10. The landlord has produced in evidence three 14-day notices served on the tenant in 2025 as follows:

a. A notice on 14 February 2025 states that the tenant has breached her responsibilities under s40(2)(c) RTA and sets out the wording of that provision. The notice requests that the tenant “refrain from disturbing your neighbours at all times” and gives her until 6 March 2025 to remedy the situation. While not detailed in the notice itself, the landlord says that this notice was issued following a complaint received from a neighbour that the

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tenant was blasting a stereo and people at the flat were making excessive noise for several hours on 12 February 2025. The matter was reported to [NAME] who acknowledged the complaint at 10.26pm on 12 February 2025;

b. A notice on 12 March 2025 states that the tenant has breached her responsibilities under s40(2)(c) RTA and sets out the wording of that provision. The notice requests that the tenant “refrain from disturbing your neighbours at all times, remove all items from the balcony” and gives her until 26 March 2025 to remedy the situation. While not detailed in the notice itself, the landlord says that this notice was issued following a complaint received from a neighbour on 8 March 2025 that the tenant had been disturbing the whole floor during the week with very loud screaming every day and leaving rotten food on the shared balcony area. The complainant also alleged that a “[NAME]” at the premises was stealing other tenants washing, mail and trying to enter other flats without knocking.

c. A notice on 11 May 2025 details complaints received about letting non- tenants into the building who then cause mischief such as smoking in the lift and hallways, making excessive noise, and kicking and breaking the lift. The notice requested that the tenant “not allow entry to [NAME] into the building, unless they are your [NAME].” The notice gives the tenant until 29 May 2025 to remedy the situation. It appears that this notice was served after complaints made on 28 April and 6 May 2025.

11. On 15 May 2025 a tenancy manager from another organisation managing tenancies in the building emailed the landlord with reports from neighbours alleging the tenant’s [NAME] have been knocking on other tenants’ doors, hanging out in the elevator, scaring children. The tenancy manager also says that he has noticed rubbish sprawled through the hallways and shared balcony outside this tenant’s flat. He also noticed the door to the tenant’s flat open but when he called out to the tenant, she was not there.

12. Many of the 2025 complaints have been made through another organisation managing tenancies in the building and not directly by the affected tenants. The landlord says that they have not spoken to the tenant directly about the matters and usually alert her [NAME] at [NAME] who then speaks with the tenant. No written statements or emails have been produced from any of the complainants directly. While I acknowledge that complainants may not wish to be identified, it is open to the landlord to collect witness statements and redact any personal details should they not wish to be identified.

13. There were also no photos produced in evidence by the landlord of the belongings and rubbish on the shared balcony and in the corridor which the landlord says the tenant and/or [NAME] put there. There were also no photos of the lift damage.

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14. The tenancy manager managing several flats in the building for another provider gave evidence by telephone of ongoing complaints he has received concerning this tenant. He also provided a letter in [NAME] of the termination application. A particular problem highlighted was that the tenant’s guests/[NAME] engage in behaviour which other tenants find intimidating and disruptive. He acknowledged that the tenant is a “nice person” that has people over to visit. However, he expressed concern that if the disruptive behaviours of her guests and [NAME] continue, this will negatively impact other tenants in the building. He noted that there are many vulnerable people in the building who need a safe environment.

Tenant evidence

15. The tenant’s [NAME] person acknowledges that she has received copies of several 14-day notices served on the tenant since 2023. She made the following submissions:

a. The tenant’s care manager and registered nurse from [NAME] wrote a letter of [NAME] dated 23 May 2025 presented to the Tribunal. The letter confirms that the tenant has an established diagnosis of Paranoid Schizophrenia for which she is currently receiving treatment. This requires interventions and regular follow-up with [NAME];

b. The letter from [NAME] and a second letter from an oncologist dated 26 May 2025 also confirms that the tenant has recently been diagnosed with breast cancer for which she will undergo radiotherapy treatment to begin in June 2025 over 4-5 weeks. The side effects of the treatment include fatigue and skin reaction;

c. Both health professionals advise that the tenant requires stable, safe, and reliable accommodation as close to the hospital as possible. They advocate for the tenant to be permitted to stay at her current residence as this would be ideal, particularly for cancer treatment. If the treatment is interrupted, shortened, or not completed then a chance of cure diminishes significantly;

d. The tenant’s [NAME] says that the [NAME]/guests of the tenant are mostly responsible for the disruptive behaviour. She says that the tenant is afraid of some of these people who may be taking advantage of her. There is a suggestion that other tenants may also be letting these people into the building. However, it seems that the tenant is also letting people into her flat. She is also known for losing her keys and leaving her flat door unlocked. The [NAME] says that the tenant is extremely vulnerable;

e. The tenant’s [NAME] has pledged to provide further assistance to the tenant through regular check-ins with her at the premises.

16. The tenant has acknowledged that [NAME] have caused disruption sometimes. For example, she says that she does not have a stereo or TV and that music played loudly from her flat has been on devices [NAME] have brought in.

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17. It was my impression during the hearing, that the tenant may not be aware of all the disruptive behaviour being caused by [NAME] to her flat when they are roaming the building.

Discussion and findings

18. The issues to determine are: Is the tenant in breach of her obligations under the RTA?; Has the landlord served proper 14-day notices on the tenant?; Has the tenant remedied the breaches in the 14-day notices?; Are the breaches of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy?

Breaches

19. The evidence provided in relation to complaints against the tenant in 2025 are mostly hearsay with no direct evidence from complainants. However, the tenant and her [NAME] acknowledge that there has been disruptive behaviour caused by third parties known to this tenant who she has let into her apartment or who have gained access when she does not lock her door. Its seems that she does not ask them to leave because she is afraid to do so. She mentioned that she is sometimes scared that they might bang down her door.

20. We discussed at the hearing that it is very important that the tenant not let in [NAME] if she suspects that they will be disruptive to others living in the building. She must also tell [NAME] to leave if they engage in disruptive behaviour such as playing loud music, shouting, knocking on other tenant doors or putting their belongings or rubbish in communal areas, and so on. We also discussed that she could call the police if [NAME] won’t leave when asked. She also needs to lock her flat.

21. In summary, there is evidence that the tenant has let [NAME] in who have disturbed the reasonable peace, privacy and comfort of others in the building in breach of s40(2)(c) RTA, and she has not taken reasonable steps to ask them to stop or leave. The tenant has acknowledged this. Section 41 RTA says that a tenant is responsible for anything done or omitted to be done by any person who is in the premises with the tenant’s permission, if the act or omission would have constituted a breach of the tenancy agreement had it been done by the tenant. However, I consider that the landlord has not proved on the evidence all the alleged incidents raised.

14-day notices

22. In relation to the 14-day notices, I am concerned that the first 2 notices dated 14 February and 12 March do not give sufficient detail about the complaints. Section 56(1)(b)(i) RTA provides that before making an order terminating the tenancy the Tribunal must be satisfied that: “…the applicant gave to the other party a notice specifying the nature of the breach complained of and requiring the other party to remedy the breach within a reasonable period.” Both notices say that the

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tenant has breached her responsibilities under s40(2)(c) RTA and set out that provision. The notices do not specify how that provision has been breached because they do not specify the behaviour complained about and when it occurred. I consider the wording of s56 requires the landlord to identify the particular behaviour and when it occurred to a reasonable extent. For example, a notice could say: Playing loud music and people shouting and screaming from the flat between 10pm and 3 am on [dates/date range].” The remedy specified in the notices to “refrain from disturbing your neighbours at all times” does not help the tenant understand exactly what behaviour or act she needs to refrain from.

23. The landlords evidence is that after service of the first notice on 14 February 2025 requiring remedy by 6 March, another complaint was made on 8 March 2025 that the tenant and [NAME] had engaged in disruptive behaviour every day that week, which led to the second notice being issued. That would indicate that the first notice was not remedied by 6 March as required.

24. It appears that the second notice dated 12 March 2025 may have resulted in a stop to disturbances by 26 March, as required by the notice. However, the landlord received further complaints of disturbances by the tenant’s [NAME] on 28 April, 6 May and 15 May 2025.

25. The third notice dated 11 May is more detailed stating “I’ve received a number of complaints now about …letting [NAME] into the building and those people causing mischief. I’ve had reports of them smoking in the lift and hallways, making excessive noise, and kicking and breaking the lift.” This notice requires the tenant to remedy the breach by 29 May 2025 by doing the following: “Please do not allow entry to [NAME] into the building unless they are your [NAME]. This is your 3rd & final notice, application will be made to Tenancy Tribunal.”

26. However, the third notice also fails to specify when the behaviour occurred in any detail. There is no date or range of dates mentioned. The notice is also confusing in that it says that the tenant is not allowed to let in [NAME] unless they are [NAME]. However, it seems to be the tenant’s [NAME] who are causing the disruptive behaviour. This needs to be more clearly expressed. Finally, as at the hearing date, the period for remedying the third notice had not expired. Therefore, I cannot determine whether this notice has been remedied or not.

27. The tenant says that there have been no disturbances for the last week or so.

28. In summary, I am satisfied that there is evidence of the tenant’s [NAME] at the premises, engaging in disruptive behaviour following service of the first and second notices. This amounts to a breach of the tenant’s obligations under s40(2)(c) RTA, but there is a question as to whether the 14-day notices are adequate in specifying the nature of the breach which required remedy. I am also not satisfied that all the alleged behaviour has been proved.

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Would it be inequitable to refuse to make a termination order?

29. Assuming the first two 14-day notices are valid and have not been remedied, I consider whether it would be inequitable not to terminate the tenancy. The District Court has held that the relevant factors to consider are1:

a. The history of the tenancy;

b. Whether there has been a persistent failure after repeated warnings;

c. Whether the history of breaches is such that it is unlikely the tenant will comply with their obligations in future;

d. Whether the breach was inadvertent or deliberately committed;

e. The conduct of the landlord;

f. The gravity of the breach;

g. Whether termination is a proportionate response.

30. The landlord’s evidence of breaches prior to 2025 was mostly hearsay and no 14- day notices served on the tenant before 2025 or other documentary evidence of prior breaches was produced. Therefore, I cannot properly consider the nature and extent of those alleged historical breaches. Therefore, I only consider the behaviour complained about in 2025 which resulted in the three 14-day notices set out in paragraph 10 above.

31. While the landlord complains that the tenant and [NAME] have engaged in the same pattern of disruptive behaviour throughout the tenancy, they have not previously brought an application to the Tribunal for termination of the tenancy. This application was not made until 12 May 2025.

32. I am conscious that the tenant is particularly vulnerable given her mental and physical health status and has likely been taken advantage of by [NAME] who may be mostly responsible for the disruptive behaviour. I consider that the tenant has not committed the 2025 breaches deliberately.

33. The tenant’s [NAME] has offered to keep in more regular contact with the tenant. It is hoped that she can provide regular reminders to the tenant about how to avoid and/or deal with disruptive [NAME].

34. There is insufficient evidence to prove all the breaches alleged as there is insufficient corroborating evidence.

35. Based on the available evidence of breaches in 2025 and my concerns about the number of breaches proved, I consider termination at this stage would be a

1 Vincent Dean Huff v City Central Property Management [2020] NZDC 19229

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disproportionate response. I also take into account the tenant’s health situation and need for a stable environment.

36. In summary, even if the 14 day-notices meet the requirements of s56, I consider that it would not be inequitable to refuse to terminate the tenancy. Put another way, I find that termination is not a just and equitable outcome on this occasion. Having said that, if there is a repeat of the behaviour complained of, and the landlord brings another application to the Tribunal which is proved, the tenancy may be terminated. Therefore, the tenant must take the landlord’s concerns seriously and make every effort to ensure that neither she or [NAME] do anything to disturb the peace, comfort, and privacy of her neighbours.

37. As the application has been dismissed, the landlord is not entitled to suppression of their name and identifying details. However, I am granting suppression to the tenant because she has successfully defended the application. In addition, I am suppressing her name and the address of the premises to ensure her identity and details of her health status referred to in this decision remain confidential.

[NAME] 29 May 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 [NAME] 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 [NAME] ma runga [PHONE] ranei.

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].

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/

Reasons: