Tenant's Application for Compensation and Eviction Dismissed by Tenancy Tribunal

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[2025] NZTT 5120680

TENANCY TRIBUNAL AT MANUKAU | TE TARAIPIUNARA RETIHANGA KI MANUKAU

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [ADDRESS], [POSTCODE]

ORDER

1. The tenant’s application is dismissed.

Reasons:

1. Both parties attended the hearing on 26 March 2025. The tenant attended by telephone with the Tribunal’s permission. The tenant was given time to comment on documents handed up by the landlord at the hearing. No further comments have been received.

2. The tenancy started on 26 June 2019 and is periodic. The tenant complains of ongoing issues with her [NAME] playing loud bass music. The tenant seeks compensation and the eviction of [NAME], who is also a tenant of the landlord.

Background

3. The landlord provided the Tribunal with a detailed timeline of events. The timeline records the first complaint from the tenant about noise having been received on 19 January 2022.

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4. The tenant says the problems started in 2019. The file does not record any complaints to the landlord before 2022, however, there are several text messages which go back to September 2020 and earlier reports to Council noise control.

5. A summary of the background is set out below:

• The tenant made complaints to the landlord about noise from [NAME] in January, February, and May 2022.

• The landlord issued a section 40(2)(c) notice on 25 May 2022. The letter noted that the landlord had spoken to [NAME] that day about disturbing the tenant’s peace and comfort by playing music.

• On 9 June 2022 the tenant was advised of the outcome of her complaint. The tenant was told that the landlord had spoken to [NAME], who had apologised and advised he would keep music and noise to a minimum.

• On 4 September 2022 the tenant complained about loud music.

• In July 2023 the tenant complained about loud music. The landlord told her the complaint would be investigated and addressed with [NAME].

• In June 2024 the tenant made a complaint about noise.

• The landlord issued a section 40(2)(c) notice on 14 June 2024. This referred to a meeting with [NAME] in the landlord’s office that day.

• On 17 June 2024 the tenant was advised of the outcome of her complaint. The landlord had spoken to [NAME], who had apologised and said he would keep music and noise to a minimum.

• On 2 and 22 August 2024 the tenant made complaints about noise. She subsequently provided video evidence showing the [NAME] revving his dirt bike on the shared driveway.

• The landlord issued a first section 55A notice on 30 August 2024. The letter itemised incidents of the [NAME] riding a dirt bike down the shared driveway on 8 August at 4.52pm, 9 August at 3.04pm, and 13 August at 2pm.

• The landlord held a meeting with [NAME] at their office on 11 September 2024. According to the landlord, he was made aware that his tenancy was at risk.

• On 11 September 2024 the tenant was advised of the outcome of her complaint. The landlord had spoken to [NAME], who apologised for the loud music and advised that he would keep music and noise to a minimum.

• On 24 December 2024 the tenant complained about loud music.

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• On 26 December 2024 the tenant advised that [NAME] had been playing loud music on 25 December when she got home. When she requested the bass be turned off [NAME] and his son yelled abuse and were intimidating.

• The landlord issued a first section 55A notice on 30 December 2024 (the previous 55A notice having been issued more than 90 days previously). The letter referred to incidents on 26 December 2024 at 3am and 5.37am when the [NAME] was riding a dirt bike from his back yard onto the shared driveway and doing burnouts on the street.

• The landlord issued a second section 55A notice on 6 January 2025. This referred to the [NAME] revving a dirt bike in [NAME]’s backyard at approximately 4am on 2 January 2025.

6. The landlord says there have been no noise complaints from other tenants. The 2-bedroom, 2-storey units are in a block of 5. The tenant’s unit is at the end of the block and only has a [NAME] on one side.

7. Noise control attended on 29 August 2019 (no noise) 4 September 2019 (no noise) 12 September 2020 (excessive noise direction issued) 2 January 2021 (not excessive) 17 April 2021 (no noise) 15 January 2022 (not excessive) 30 January 2022 (not excessive) and 31 January 2022 (no noise). More recently noise control attended on 9 July 2024 and 14 September 2024 (3 times). They did not detect any noise. The tenant says she called noise control many more times than this. Sometimes they did not turn up.

Relevant Law

8. The landlord has an obligation to take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises (section 45(1)(e) of the Residential Tenancies Act 1986 (the Act)).

9. Equally, a tenant has an obligation not to 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 (section 40(2)(c) of the Act).

10. Section 55A of the Act enables a landlord under a periodic tenancy to apply to the Tribunal for an order terminating the tenancy on grounds of anti-social behaviour if certain conditions are met. Primarily, there must be 3 separate occasions of anti-social behaviour in a 90-day period. The landlord must serve written notices containing prescribed information in respect of each occasion and apply to the Tribunal within 28 days of the third notice.

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Analysis

11. The landlord said that there was no evidence of excessive noise from noise control, and no other neighbours had made complaints of loud noise. The landlord submits that they have taken all reasonable steps available to address the disruptive behaviour.

12. The problems complained of have been recurring sporadically for a long time. A total of 5 breach notices have been served. If the landlord’s correspondence is correct, [NAME] has a pattern of apologising, promising to change their behaviour, and then not doing so. There is also no suggestion that the tenant has done anything wrong or retaliated with anti-social behaviour of her own. I am satisfied that there is an issue with anti-social behaviour by the tenant’s [NAME] which requires resolution.

13. However, I am not satisfied that the landlord has failed to take all reasonable steps to protect the tenant’s quiet enjoyment. The landlord can only respond to the evidence of anti-social behaviour that is provided. Until about August 2024, the landlord was aware of and acted on complaints about noise but had no complaints from other people or noise control reports to justify an application to the Tribunal. The videos of the [NAME] on his dirt bike likely gave the landlord more scope to take effective measures to protect the tenant’s interests. The timeline also suggests that the issues with noise grew more frequent during 2024.

14. The situation has been extremely upsetting and vexing for the tenant, who has been deeply affected by these incidents. The landlord has taken the tenant’s complaints seriously, has investigated them, spoken formally to [NAME], and issued breach notices where appropriate. [NAME] is one breach notice away from an application for termination pursuant to section 55A of the Act.

15. The landlord has a continuing duty to take steps to protect the tenant from interference with her use of the premises. Whether and when an application for termination of [NAME]’s tenancy should be made is a matter for the landlord, after carefully considering that ongoing duty. The landlord may breach section 45(1)(e) if anti-social behaviour is allowed to continue despite there being reasonable grounds for termination.

[NAME]

02 April 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 [NAME]/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 [NAME]/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.[NAME]/disputes/enforcing-decisions https://www.[NAME]/disputes/enforcing-decisions http://www.[NAME]/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: [NAME]/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: