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Kāinga Ora pinged for delay in evicting anti-social tenant

10 May 2024

| Author: Sally Lindsay

Kāinga Ora has been ordered to pay $6,000 in compensation and general damages to one of its tenants after taking weeks to file an eviction notice against a neighbouring tenant who allegedly pushed his partner off a second floor balcony, seriously injuring her three days before Christmas.

The unruly tenant at the Kāinga Ora Mt Smart, Auckland 20-unit complex, identified in the Tenancy Tribunal’s decision as a Mr Toto, was charged by police on 22 December 2023 with intent to injure, but the state landlord didn’t apply for an eviction notice until 11 March 2024.

The tribunal said it did not accept Kāinga Ora’s defence that the delay in applying for the tenancy termination was because it was obtaining legal advice internally before the application was made.

Tribunal adjudicator R Woodhouse said no reasonable landlord would have then filed three antisocial behaviour notices and waited six weeks after that before filing for tenancy termination when faced with serious allegations, such as a tenant throwing another person off a second floor balcony, having methamphetamine and utensils at their flat and assaulting another tenant.

“In my view, any reasonable landlord would have applied to the tribunal for termination well before the landlord did in this case.

Woodhouse says even if he were to consider only the behaviour set out by Kāinga Ora in the s 55 antisocial notices under the Residential Tenancies Act (RTA), a reasonable landlord would have applied for an immediate termination under ss 55 and 56.

He found by a “significant margin” Kāinga Ora had not taken all reasonable steps to ensure the tenants at issue did not cause or interfere with the peace, comfort and privacy of a neighbouring tenant, who filed a tribunal application in February against the state landlord, saying it failed to adequately ensure the quiet enjoyment of the other tenants at the complex and asked for exemplary and general damages as well as compensation.

Kāinga Ora did not dispute that the tenant, who has name suppression, made regular complaints about the wide-ranging anti-social behaviour of Mr Toto and his unit 10 tenants and their visitors, but claimed exemplary damages could not be ordered and opposed compensation or general damages because it considers it acted reasonably.

However, Woodhouse said Kāinga Ora seriously underestimated and downplayed the impact for the applicant tenant of living with the abuse, threats and fear instilled by the unit 10 neighbours. Complaints had been made by the tenant over the course of a year, with no action from Kāinga Ora.

 

The complaints

Amongst the worst behaviour was Mr Toto allegedly pushing his partner off the second floor balcony of his flat.

She suffered serious injuries and other residents comforted her until emergency services arrived, causing significant mental trauma and distress to them.

On the same day police found methamphetamine and drug utensils at Mr Toto’s unit, while on 2 January he allegedly spat at a neighbour and has since also been charged with minor assault.

Other anti-social behaviour by Mr Toto, or his visitors, included people fighting in the hallway, holding the lift, drinking at the entrance door, leaving trolleys around different floors, disorder, intimidation and a woman seen by residents tampering with the access keypad, having arguments in the hallway and knocking on other people’s doors to ask for money.

The tenant told the tribunal she has been terrorised by the unit 10 neighbours and despite multiple complaints, she had got no traction from Kāinga Ora.

She had to pause her studies because she could not cope with what was happening – widespread contamination over her premises with blood, spit and urine; being called a “pig lover” because she knew police officers; death threats; the unit 10 neighbours banging on doors; a female defecating outside her door; car tyres slashed and her freedom of movement restricted.

Kāinga Ora’s housing manager told her to keep complaining so the state landlord would have a record of the issues. She told the tribunal she should not have to keep complaining without the landlord doing something about it.

At the tribunal hearing, she detailed the psychological issues she has faced from the neighbouring tenants, supported by a medical certificate from her GP. These details were suppressed.

 

Letters ignored

Despite two letters being sent to the disruptive unit 10 tenants on 27 September and 2 November last year, outlining the anti-social behaviour and asking them to modify it, and another four letters sent between October and March requesting a meeting to discuss the behaviour, the tenants ignored them.

Kāinga Ora offered to move the affected tenant to another complex, but she said she understood the government agency did not terminate problem tenancies so there was no point in moving as she would be in a similar situation with other problem tenants elsewhere.

The state landlord argued the actions it took had been reasonable in the circumstances. This included on 31 January, under s 55A of the RTA, issuing three notices of anti-social behaviour to the disruptive tenants before in March applying for termination of the tenancy.

 

RTA breach

Adjudicator Woodhead found Kāinga Ora breached its obligations under s 45 of the RTA, which requires the landlord to take all reasonable steps to ensure other tenants do not cause any interference with the reasonable peace, comfort or privacy of other tenants.

“It is not clear to me [why] the landlord sent the unit 10 tenants the letters it did on 27 September and 2 November because they are not statutory notices, they are no more than non-binding requests from the landlord that carried no legal weight.

“On reviewing those notices again following the hearing, they would not even be 14-day notices which may have been relevant for a termination application under s 56.

“That is because in order to be a s 56 notice, the notice needed to require the tenants to remedy a breach in no less than 14 days. Both notices failed to require the tenants to remedy the breaches within a time frame and I consider the breaches described would not be capable of remedy, so a notice to remedy would be a nullity.”

While Woodhouse says he cannot criticise the state landlord for wanting to meet the unit 10 tenants to discuss their behaviour, it was not reasonable to write six letters requesting a meeting.

“It should have been crystal clear to Kāinga Ora well before 15 March [that] the unit 10 tenants were not going to engage with it and a reasonable landlord would have reached that conclusion, probably after the second letter had gone unanswered.

“By persisting with requesting meetings, all Kāinga Ora did is continue to allow the other tenants in the complex to be disturbed by the behaviour of the unit 10 tenants.”

 

Compensation and damages

Woodhouse refused to award exemplary damages because the breach was not an unlawful act, but did order compensation of $3,000 and general damages of $3,000 because there was an expectation under the tenancy agreement that tenants will be at peace and comfortable in their own home.

An aggravating factor, Woodhouse said, was that rather than addressing the behaviour from unit 10, Kāinga Ora suggested the tenant move. This caused her an additional level of distress.

He says the tenant did not feel Kāinga Ora took her complaints seriously and he could understand why she felt that way. Read the decision here

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