Tribunal Rejects Landlord's Request to Terminate Tenancy for Breaches
📌 In brief
The Tenancy Tribunal dismissed the landlord's application to terminate the tenancy for repeated breaches of section 40(2)(c) of the Residential Tenancies Act 1986, ruling that the breaches were discrete events and not capable of remedy.
⚖️ Legal holding
A tenant's repeated breaches of section 40(2)(c) of the Residential Tenancies Act 1986 do not necessarily warrant termination of the tenancy if the breaches are discrete events and not capable of remedy.
📖 What the law says
This section outlines a tenant's responsibilities, which include paying rent on time, keeping the premises reasonably clean and tidy, and notifying the landlord of any damage or needed repairs. It also specifies what a tenant must do when moving out, such as leaving the premises clean and removing all their belongings and rubbish.
This section allows the Tenancy Tribunal to end a tenancy if one party has broken the tenancy agreement or the Act. If the breach can be fixed, the party complaining must have given the other party a notice to fix it within at least 10 working days, and the other party failed to do so.
Plain-English explanation — does not replace advice from a lawyer.
📖 Technical summary
The Tribunal dismissed the landlord's application to terminate the tenancy for repeated breaches of section 40(2)(c) of the Residential Tenancies Act 1986.
📜 Headnote Official document
The Tribunal dismissed the landlord's application to terminate the tenancy for repeated breaches of section 40(2)(c) of the Residential Tenancies Act 1986, finding that the breaches were discrete events and not capable of remedy.
📚 Full judgment Official document
__________________________________________________________________________________ 5179952 1
[2025] NZTT 5179952
TENANCY TRIBUNAL AT WAITAKERE | TE TARAIPIUNARA RETIHANGA KI WAITĀKERE
APPLICANT: [redacted]
Landlord
RESPONDENT: [redacted]
Tenant
TENANCY ADDRESS: Unit/[ADDRESS], [POSTCODE], Westwood Apartments
ORDER
1. [NAME] to pay [COMPANY] T/A [NAME] $247.00 immediately, calculated as shown in the table below.
2. The landlord’s application for termination of the tenancy is dismissed.
Description Landlord Tenant Rent arrears to 24 March 2025 $220.00 Filing fee reimbursement $27.00 Total award $247.00
Reasons:
1. Both parties attended the hearing.
2. The parties signed a one-year fixed-term tenancy agreement that began on 07 August 2024 which is due to end on 05 August 2025.
3. The landlord has applied to the Tribunal for an order terminating this tenancy for repeated breaches of section 40(2)(c) of the Residential Tenancies Act, 1986 (the “RTA”). Under this section, a tenant shall not cause or permit any
__________________________________________________________________________________ 5179952 2
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.
4. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 40(3A)(d) and Schedule 1A Residential Tenancies Act 1986.
5. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". [NAME] v [NAME], CIV-2009-[PHONE], DC Hamilton, 26 February 2010.
6. The landlord is seeking termination and not exemplary damages as a remedy for the breach.
The breaches
7. The landlord received a report filed to the [NAME] by a [NAME] of the tenant on 6 February 2025, which states the tenant was walking around in a public area of the complex, swinging her arms, crying and swearing at and being abusive to other people in the complex.
8. On 7 February 2025, the landlord served the tenant a 14-day notice to remedy a breach, under section 56 of the RTA.
9. The tenant stated in response that other people in the complex are constantly watching her and she feels harassed. She stated that she never received the section 56 notice to her email inbox.
10. I note however that at the top of the email the landlord says she sent to the tenant, is an email address that the tenant confirmed is her current email address.
11. On Monday 24 February 2025, the landlord received a report filed to the [NAME] by a different [NAME] of the tenant. The report was of the tenant screaming and making abusive threats to a person, or everyone in general, such as “I’ll kill you”. The tenant was also smashing her clothes rack into the fence.
12. In response the tenant said she didn’t do this, and the other people should mind their own business.
13. The landlord also claimed that on 25 February 2025, the tenant had walked out to the carpark naked and then started rummaging through her car. A contractor had witnessed this and stated that he felt uncomfortable in her presence. The
__________________________________________________________________________________ 5179952 3
landlord then amended “naked” to walking around in her bra and undies. The landlord produced two videos showing this.
14. In response the tenant stated the video shows her wearing her bikini and carrying a towel. There is a pool at the complex.
15. Having seen and heard from both parties, I determine the information regarding these three events is largely reliable and is largely accurate in describing the tenant’s behaviour.
Should the tenancy be terminated?
16. 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.
17. 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.
18. 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 of remedy where the thing done, or its effect, cannot be undone.
19. 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.
20. The landlord considers that because the tenant has breached section 40(2)(c) subsequent to a 14-day notice to remedy being served, the tenant is caught by section 56(1)(b) (breach capable of remedy) of the RTA and the tenancy should be terminated.
21. I am not persuaded of this for three reasons. The first is that because the tenant’s actions are a discrete event rather than a continuing event, I do not consider they can be accurately classed as a breach capable of remedy. Once the event is passed, nothing can undo the event. That is the case with this tenant’s actions. An abusive event is by its nature different to a pile of rubbish that has been left on a driveway and once removed all associated harm is finished with. In this case, the tenant cannot act to undo the breach that has been complained of.
22. The second reason is that once the 14-day period has passed without further incident, I consider the 14-day notice to have run its course. An event that then happens after the end of the 14-day notice no longer qualifies as a continuing breach within the 14-day period. The alternative to this is that if a 14-day notice was a correct way to deal with an “anti-social” event, then once the 14-day notice had been served any further anti-social even, even years later, would still
__________________________________________________________________________________ 5179952 4
qualify as a breach of the same 14-day notice. This would be inconsistent with the provision under section 55A RTA relating to antisocial behaviour in periodic tenancies, three of which within a 90-day period can lead to termination.
23. The purpose of the requirements of section 55A is that the tenant receives fair warning regarding their behaviour, is given a reasonable opportunity to remedy the behaviour, and the right to have breaches stale and time out after 90-days.
24. It is my view that an antisocial event by a tenant is not a breach capable of remedy. It is also my view that the three events given by the landlord do not qualify within a 14-day window.
25. If I am wrong on both these accounts, I am still of the view that because the communications by the landlord with the tenant are nowhere near as robust as the requirements set out in the section 55A antisocial behaviour provisions, it would be inequitable to terminate the tenancy for these breaches. That is to say the tenant has not been given notice that they will get three warnings, when the notice period is running from and to, how many other incidents have been recorded, etcetera.
26. In my view the landlord is attempting to take the section 55A antisocial behaviour provision that applies only to periodic tenancies (for which termination is available) and shoehorn it into a section 40(2)(c) breach in a fixed-term tenancy for which the prescribed remedy is exemplary damages. The landlord is attempting to do this by applying a section 56, 14-day notice breach to the events that have occurred.
27. But in my view, for the above reasons “the shoe just doesn’t fit”.
28. Because the landlord has partially succeeded with their claims I have ordered reimbursement of the filing fee.
[NAME]
24 March 2025
__________________________________________________________________________________ 5179952 5
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/
__________________________________________________________________________________ 5179952 6
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:
⚖️ What tends to weigh in cases like this
✅ Tends to be accepted
- The tenant was ordered to pay rent arrears to the landlord.
- The tenant was ordered to reimburse the landlord for the filing fee.
- The tenant confirmed that the email address used by the landlord for the 14-day notice was her current email address.
- The landlord partially succeeded with their claims, leading to the reimbursement of the filing fee.
❌ Tends to be rejected
- The landlord's application to terminate the tenancy was dismissed.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Tenancy Tribunal dismissed the landlord's application to terminate the tenancy for repeated breaches of section 40(2)(c) of the Residential Tenancies Act 1986.
What was the dispute about?
The landlord sought to terminate the tenancy due to repeated breaches of section 40(2)(c) of the Residential Tenancies Act 1986, alleging that the tenant's behavior interfered with the peace, comfort, or privacy of others.
How did the court decide, and why?
The court decided to dismiss the landlord's application because the breaches were found to be discrete events and not capable of remedy, meaning they could not be undone once they occurred.
Which laws or rules were applied?
Section 40(2)(c) and Section 56(1) of the Residential Tenancies Act 1986 were applied.
What was the argument that mattered most?
The argument that mattered most was whether the breaches were capable of remedy, and the court ruled that they were not.
Was the decision for or against the person who brought the case?
The decision was against the landlord, who brought the case.
What does this mean for someone in a similar situation?
For someone in a similar situation, the decision suggests that repeated breaches of section 40(2)(c) may not be sufficient grounds for termination if the breaches are discrete events and not capable of remedy.
What evidence or documents mattered?
The judgment mentions reports filed by other residents of the complex detailing the tenant's behavior, and a 14-day notice to remedy the breach served by the landlord.