Tenant's Lease Terminated for Assault Threats and Repeated Breaches

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[2025] NZTT 5249516

TENANCY TRIBUNAL AT PALMERSTON NORTH | TE TARAIPIUNARA RETIHANGA KI TE PAPAIOEA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

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

ORDER

1. The tenancy of [NAME] at Unit/[ADDRESS], [POSTCODE] is terminated, and possession is granted to [COMPANY], at 11.59 pm Friday 6 June 2025.

Reasons:

1. Both parties attended the hearing by telephone. The tenant was supported by her father who spoke on her behalf from time to time.

2. The landlord has applied to the Tribunal for an order terminating the periodic tenancy on the following grounds:

a. The tenant has threatened to assault an agent of the landlord, being a staff member. See sections 2 and 55(1)(c)(iii) Residential Tenancies Act 1986 (“RTA”).

b. For anti-social behaviour. See section 55A RTA.

c. For repeatedly breaching the terms of her tenancy agreement and the RTA by disturbing the quiet enjoyment of the landlord’s other tenants. See sections 40(2)(c) and 56(1) RTA and clause 9 of the Tenancy Agreement.

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Standard of proof and evidence

3. In considering the landlord’s 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. While this decision has not referred to all the evidence presented at the hearing or filed with the Tribunal, 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.

Termination for threatening to assault an employee of the landlord

6. The landlord gave evidence as follows:

a. A signed, formal statement from an employee of the landlord regarding an incident involving the tenant on 8 January 2025 at about 1 pm which culminated in the tenant walking from the carpark “straight up to my face and started swearing at me, and then said, “I will fuckin smash you, and that would be self-defence. [The tenant] then walked closer to my face, less than a hand away, with her arms waving in the air, she was trying to eyeball me out.” The police were called at 1.38 pm and a complaint filed.

b. A first notice of anti-social behaviour dated 9 January 2025 (“the first ASB notice”) was sent to the tenant detailing the behaviour as follows: “On 8 January 2025 between 1 pm and 1.40 pm you were asked by Team Leader to stop yelling and swearing as it was a disruption to herself and Kainga Ora Staff. The Team Leader went back into the Office. Shortly afterwards the Team Leader came back outside with [another staff member] where you were asked again to stop yelling and swearing. You approached the Team Leader using abusive language towards her and then threatened to assault her.”

7. The tenant gave evidence as follows:

a. She suffers from borderline personality disorder and was in the middle of a bad episode. She was also in a “toxic relationship” at the time. She also suffers from misophonia.

b. She was just asking for help and did not know who the staff member was.

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c. She did not recall threatening the Team Leader but went and apologised to her after the incident.

Discussion and decision

8. On the evidence before the Tribunal, the landlord has proven on the balance of probabilities that the tenant threatened the Team Leader, an employee of the landlord and therefore an agent of the landlord. Section 2 RTA provides that “agent” includes an employee of the landlord.

9. While the Tribunal can have sympathy for the tenant’s mental illness, the RTA is clear that the Tribunal shall make an order terminating the tenancy where a tenant threatens to assault an agent of the landlord.

10. Under section 55(2) RTA a threat of cannot be remedied, but the Tribunal has a discretion not to terminate the tenancy if the landlord had been compensated for any loss from the breach and a further breach was unlikely. In this case there is no question of compensation for the landlord’s loss. Given the totality of the evidence presented by the landlord and detailed in this order, the Tribunal cannot be satisfied that it is unlikely that the tenant will not commit a further breach of this section.

11. The Tribunal therefore determines that the tenancy should be terminated under section 55(1)(c)(iii) RTA.

Termination for anti-social behaviour

12. The landlord issued three notices for anti-social behaviour as follows:

a. The first ASB notice.

b. A second notice of anti-social behaviour dated 3 March 2025 (“the second ASB notice”) detailing the following behaviour which occurred on 21 February 2025 and discussed with the tenant on 24 February 2025: “You admitted to the disruptive behaviour of a verbal and physical altercation between yourself and your partner. The altercation occurred in common spaces of the complex where neighbours and visitors to the building witnessed the incident feeling alarmed, distress and in breach of their quiet enjoyment.” This notice was supported by a signed statement from a staff member.

c. A third notice of anti-social behaviour dated 10 April 2025 (“the third ASB notice”) detailing an incident at 9.19 pm on 18 March 2025 involving yelling, swearing and abuse in a confrontation with an [NAME]. A video of the incident was provided.

13. The landlord has since issued the following notices:

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a. A breach letter dated 12 May 2025 regarding an incident on 9 May 2025 around 11.15 am which “involved your visit to the office during which you exhibited aggressive behaviour by striking the reception glass a few times. Subsequently, an altercation occurred with your partner in the car park area, resulting in a significant disturbance to the peace, comfort, and quiet enjoyment of residents”.

b. A further notice of anti-social behaviour dated 15 May 2025 (“the fourth ASB notice”) regarding an incident on 14 May 2025 at around 2.55 pm when “you turned up in an agitated state and yelling… You handed a kitchen knife to staff over the office counter and claimed that you had it on you for self-defence against [your partner].”

14. The tenant gave evidence in response as follows:

a. During this period, she had a very volatile relationship with a “toxic boyfriend” which has now ended and a protection order is in place.

b. She was trying to protect and help a [NAME] in the incident referred to in the third ASB notice. The [NAME] confirmed that he viewed the incident and confirmed his daughter’s version of events.

c. In relation to the fourth ASB notice, she had a knife in her hand because she had been cooking and had rushed out of her unit with her partner’s bags which she was putting outside. She used the knife to cut the handles to her partner’s bags. This explanation for the possession of the knife is at odds with the explanation given to the landlord’s staff recorded in the fourth ASB notice.

15. Subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied:

a. On 3 separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission, engaged in anti-social behaviour in connection with the tenancy; and

b. On each occasion the landlord gave the tenant written notice—

i. Describing clearly which specific behaviour was considered to be anti-social and (if known to the landlord) who engaged in it; and

ii. Advising the tenant of the date, approximate time, and location of the behaviour; and

iii. Stating how many other notices (if any) the landlord has given the tenant under this paragraph in connection with the same tenancy and the same 90-day period; and

iv. Advising the tenant of the tenant’s right to make an application to the Tribunal challenging the notice; and

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c. The landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.

16. The second ASB notice does not specify the approximate time of the incident. It refers only to 21 February 2025. This notice does not comply with the detailed requirements of section 55A(2)(b)(ii) RTA. The notice is therefore invalid.

17. While section 85 provides that the Tribunal shall not be bound to give effect to legal forms or technicalities, the very precise requirements of section 55A RTA indicate that Parliament intended strict compliance. There is a stigma on a tenant associated with eviction for anti-social behaviour and it is therefore important that all the specific requirements of the section are met before the Tribunal determines that a notice is valid.

18. The fourth ASB notice states that it is the first notice for anti-social behaviour that has occurred within the last 90 days. It cannot therefore save the defective second ASB notice, although three notices have been issued within 90 days of the second ASB notice.

19. Because the second ASB notice is invalid, the landlord’s application for termination under section 55A RTA is dismissed.

Termination for repeated breaches of the RTA and the tenancy agreement

20. The landlord has applied for termination under section 56(1) RTA because the tenant has repeatedly breached her obligations under section 40(2)(c) RTA and clause 9 of the Tenancy Agreement.

21. The Tribunal accepts the landlord’s evidence that the tenant has repeatedly breached her obligation not to interfere with the reasonable peace and comfort of the landlord’s other tenants.

22. The landlord has issued notices to the tenant of the breaches. The notices have warned her that further breaches may result in her tenancy being terminated.

Discussion and decision

23. The breaches are not capable of remedy. The tenant cannot undo her actions.

24. It is necessary to consider under section 56(1)(c) RTA whether the breaches are of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.

25. The District Court in [NAME] v [NAME] 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.

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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.

26. It would be inequitable to refuse to terminate the tenancy for the following reasons:

a. The breaches are serious and have been persistent and repeated over a period of five months. They have involved behaviour which has frightened and caused distress to the landlord’s other tenants and its employees. The behaviour has been aggressive and threatening involving abusive language, a threat to the landlord’s staff member, striking the reception area’s glass and carrying a knife.

b. The continued breaches since the landlord filed its application with the Tribunal, do not give the Tribunal any confidence that the tenant will stop the disruptive behaviour.

c. While much of the behaviour has involved altercations with the tenant’s partner, they have also involved members of the landlord’s staff. The tenant is responsible for the actions of her partner while on the premises.

d. The landlord has a duty to protect its staff as well as other residents of the complex from such behaviour.

e. While the tenant has psychological issues, she remains responsible for her actions, especially as they impact on innocent bystanders such as other tenants in the complex and the landlord’s staff.

f. The landlord has repeatedly drawn the tenant’s attention to the problems caused by her behaviour by issuing the notices detailed above and meeting with her.

g. The tenant’s position is poor. She will inevitably need to find alternative accommodation and face the costs of moving.

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h. Termination for such repeated breaches over such a long period is a proportionate response. The landlord has obligations to its other tenants, many of whom are equally unwell or vulnerable, to protect them from this kind of disturbing behaviour.

27. The landlord’s application for termination under section 56(1) RTA is granted.

[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 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: