Third compensation payment to Kāinga Ora tenant over unruly neighbours

Kāinga Ora has to pay compensation for a third time to a tenant in a 104-unit apartment block for disturbance of her peace by unruly neighbours.

The tenant, who has name suppression, has been awarded $2,000.

The Tenancy Tribunal says it is not acceptable Kāinga Ora has taken nearly a year to intergrate into its own policies strengthened RTA amendments to deal more effectively with tenants engaging in anti-social behaviour.

Despite the changes, and complaints over 16 months from the tenant about unruly neighbours, Kāinga Ora has not used these provisions,

While Kāinga Ora is dealing with a need in society that must be addressed and the tribunal says the social housing provider did take steps to address the tenant’s complains, it did not take all steps available to it.

Tribunal adjudicator K Lash accepted Kāinga Ora’s reasons as to why it does not terminate tenancies. “It is quite right; if it doesn’t house people in need, no one will.

“However, it does have a legal obligation to its tenants to uphold its responsibilities under the Resdiential Tenancies Act. Kāinga Ora’s policy decisions or practices do not, and cannot, override its obligations under the law. It is in a difficult position.” 

Trouble began early into the  tenancy. Eight months after it started at the end of 2018, the social housing provider had to fork out $2,000 to the tenant for exemplary damages and $779.99 in compensation for damaged belongings and in settlement for its accepted breach of responsibility to protect the tenant’s quiet enjoyment of the premises to that date.

About 18 months later, Kāinga Ora paid the tenant Tribunal Tenancy ordered compensation of $3,223.24 for breaches of her peace and quiet by unruly neighbours.

The tenant’s apartment is in a city complex managed by Kāinga Ora and owned by the local council. A vast majority of tenants in the complex have moderate to high levels of needs.

Until recently there was only one senior housing support manager responsible for all the tenants. Another support manager started in June this year. Kāinga Ora visits the apartment complex at least three times a week.

The latest tribunal case involves issues from January 2021 to April this year around specific tenants.

Tenant A – resides alone, however has family and friends to stay and visit and the tenant says loud music, domestic violence and drug use have been ongoing. Kāinga Ora did not challenge the evidence, but says the manager spoke with A in March last year when she apologised, and this has resolved the issue. Kāinga Ora considers all has been done that can be given A lives alone and the issues revolve around her family visiting. They have not issued her with any breach notices or taken additional steps other than meeting with her.

Tenant B – threatened the tenant’s life, and other tenants’ lives, is generally abusive and accepted as extremely anti-social. He was arrested several times. Kāinga Ora had meetings with him, served breach notices on him and he was rehomed in January, eight months after the tenant’s first complaint. Kāinga Ora say it took longer than it would have liked as he has high needs and it was difficult to find an appropriate place for him.

Tenants C & D – C is the current tenant who lives close to the tenant. D is her partner who has previously resided at the apartment complex but was transferred in 2019 due to anti-social behaviour. He continues to visit her and there have been recent instances of him breaching the complex rules by drinking in communal spaces, using abusive and threatening behaviour towards tenants and engaging in consistent anti-social behaviour. Kāinga Ora’s says it has spoken with C and has served her with breach notices regarding D’s behaviour. She is in the process of being relocated, however an appropriate home for her has not yet become available.

Tenant E – E’s behaviour has been of a concern to the tenant and other residents for about three years and she was moved out by Kāinga Ora in March.  She has allegedly physically assaulted another tenant twice; once in April last year and again in February this year. She has been verbally abusive to the tenant and her children and has engaged in particularly anti-social behaviour that has affected her and other tenants. The police have been extensively involved with E and she has been convicted of offences committed at the apartment complex against other tenants. Initially, after she was rehomed, E continued to return to the complex and engage in anti-social behaviour there. She has recently been subjected to bail conditions to not return to the complex and it does not appear she has returned since, although this has been a recent development. The tenant  remains in fear of E given her criminal history, severe mental health issues and excessively anti-social behaviour. Kāinga Ora says E had been on the initiated transfer list for more than two years, however it has not had the ability to force her to relocate; she had to agree to move. Eventually a concerted effort was made, and her transfer was successful, i.e. made with her agreement. They consider the issue resolved with the transfer and bail conditions.

Tenant F – the tenant’s evidence is that F obtained her supermarket deliveries by deception and retained the items for herself in March. She attempted to do so again several weeks later. The tenant made a complaint to the police and asked Kāinga Ora to keep the security footage of the event. The tenant’s concern is that she has had to take all the steps to deal with F and Kāinga Ora have done nothing to assist or even support her. Kāinga Ora  says as a police complaint had been made, it became a matter for them. The complex manager says she has not viewed the CCTV footage and as the police have not requested it, it has now been deleted. She has not spoken with F about the incidents as her understanding is the tenant did not want her to.

Tenant G – is E’s partner and still resides in the apartment complex. The tenant’s concerns with him are that he still allows E back into the premises but also that he exhibits anti-social behaviour of his own by abusing and threatening her and others. There was an instance in March when he threw a cup of water on her, spat at another tenant she was with and told the tenant he would “f*#n get” her and that he would show her what he was capable of. Kāinga Ora say it has spoken to him, but he is denying some of the tenant’s claims and it is still in the process of arranging a meeting with him. It say he has also made a complaint against the tenant so the issues around him are more comprehensive. Kāinga Ora has, however told him that if he continues to allow E back into the premises his tenancy will be jeopardised.

Tenants H & I – H is a tenant of the complex and her son’s behaviour has been the major concern for the tenant as she hears him being violent to H both physically and verbally. The police have been called in response to his behaviour as he allegedly yells, swears, threatens and verbally abuses others. Kāinga Ora moved him to another property in July 2020, but he comes back to visit, and the tenant says more so recently. Kāinga Ora says it has spoken with H about I’s behaviour and she denies the domestic violence. She has however agreed to speak with I about his behaviour. It also arranged a meeting between them, H and the tenant. Kāinga Ora has advised H that if I’s anti-social behaviour continues, her tenancy will be in jeopardy.

The tribunal says there is no dispute the tenant has brought her concerns to the attention of Kāinga Ora on numerous different occasions including meticulous details and supporting audio and video.

She has also involved police and noise control. The tenant says she is feeling extremely frustrated having taken issues to the tribunal previously and not seeing a subsequent meaningful change. She has also sought help from her local MP, made Official Information Act requests, sought a change in tenancy manager, made a complaint to a Kāinga Ora senior review officer, and taken legal advice.

Even though Kāinga Ora has taken action on a number of her complaints, the time it has taken them to do so has been too long and in some instances it has done nothing, says the tenant. 

She told the tribunal the impact of Kāinga Ora’s failure to take all reasonable steps to protect her from the anti-social behaviours of the other tenants has had serious impacts on her mental and physical health and her children’s’ psychological welfare.

Her studies have been disrupted, in particular she has been unable to fully participate in tutorials or concentrate on her work because of noise emanating from other apartments. Because of the pandemic she and her children have spent a lot of time at home, so the disruptions have been exacerbated.

She says they cannot live naturally in their home because of the constant threat the neighbours present. The children cannot play outside in the communal area and she does not use the communal washing line unless she absolutely has to. Her children do not invite  school friends over to play and she is reluctant to have friends or family over. Their sleep is disturbed, and their emotional and physical health is being affected.

She told the tribunal they are hyper-vigilant because of their experiences and their home is no longer a relaxing environment. In essence, says Lash, she expects to be physically harmed at some point in the future and is having to see a counsellor to assist her in coping with her environment. “The tenant is concerned about the long-term effects on her children of growing up in this environment.”

Lash says the other tenants’ behaviour is more serious than that in the previous cases. “The issues are increasing in severity and frequency and she is exhausted by it.”

The tenant wants Kāinga Ora’s sustainable tenancies draft policy to be scrapped. “This is not something the tribunal can direct,” Lash says. 

She also wants Kāinga Ora to use termination of a tenancy as a step it utilises in in upholding its responsibility under s45(1)(e) of the RTA. She says as New Zealand’s biggest landlord it should be setting an example to other landlords. “If it can’t keep to its obligations, then why should anyone else?”

Kāinga Ora says action is being taken to reduce the anti-social behaviour at the complex, however the challenge is considerable and takes time.

The social housing provider’s reasoning for not initiating terminations is out of concern for its tenants. It says the majority of social housing tenants will not be housed by anybody other than it. If it terminates a tenancy Kāinga Ora says the tenant/s will find themselves in emergency housing which is an extremely negative environment and potentially dangerous. “Despite the well- known “sustaining tenancies policy” only being a draft policy, Kāinga Ora is clear, it will not terminate tenancies,” says Lash.

Until now, its policy restricts it from relocating tenants without their consent. This will likely change with the newly implemented anti-social behaviour policies that are being integrated in response to the 2020 amendments to the RTA which came into force in February last year. This means Kāinga Ora will be able, through its own policy, to force tenants to relocate to other homes it has.

In its evidence, Kāinga Ora says the tenant has continued to approach it since the last hearing sending copious correspondence; so much that it cannot respond to it all.

Kāinga Ora considers it has worked hard to deal with the complaints by visiting tenants, holding meetings, serving breach notices and relocating six tenants which is more than any other housing provider in the city, and is in the process of moving two others as a result of the tenant’s complaints.

It says it takes anti-social behaviour seriously. All instances complained of are accepted but Kāinga Ora says it simply cannot work any faster in dealing with them. It is confident it has have met its obligations under the RTA sufficiently within its constraints.

The best outcome, says Kāinga Ora is for the tenant to relocate. It has offered her another property which is considered as like for like. This option is a new apartment in a small complex that has no anti-social behavioural issues. The tenant/ turned down this offer as it did not meet her needs, such as being within walking distance to her children’s schools.

She told the tribunal she is open to moving, however if she is to do so it must be to a residence that meets her needs, otherwise she feels she will be swapping one set of problems for another.

Lash says it is a difficult situation for all concerned. “The tenant must protect her family; Kāinga Ora must protect her and all its other tenants.

“It is clear that although Kāinga Ora does not have a formal policy to never terminate tenancies, that is its practice. This is contrary to its own tenancy agreement which states at p49 of the tenant’s agreement: “We (Kāinga Ora) can apply to the Tenancy Tribunal to end your tenancy have assaulted or have broken one or more terms of this tenancy agreement or the Residential Tenancies Act 1986.

“Having a blanket practice of refusing to terminate tenancies will certainly mean there will be instances when Kāinga Ora will be in breach of s45(1)(e) of the RTA as applying to the tribunal for termination of a problematic tenancy is one of the reasonable steps envisaged by this section,” says Lash. 

The February 2021 amendments to the RTA relating to anti-social behaviour allow landlords to apply to the tribunal to terminate a tenancy if on three separate occasions within a 90-day period a tenant has engaged in anti-social behaviour and has been issued with the required notices.

Lash says essentially the RTA was strengthened in an effort to deal more effectively with tenants engaging in anti-social behaviour.

“Despite this, Kāinga Ora has not used these provisions with respect to these tenants. Failing to do so or to take action when a tenant disturbs the peace with their partying or inappropriate language is one thing. Failing to do so when a tenant is physically assaulting and threatening to do so is quite another. I accept the evidence that Kāinga Ora now is aligning its policies with s55A, but this is over a year after it came into law which is unsatisfactory.”

Lash says he its satisfied the tenant’s right to quiet enjoyment has been breached, but is  equally satisfied Kāinga Ora has not directly or indirectly permitted interferences with her reasonable peace, comfort or privacy in the use of her apartment.

“I do not consider Kāinga Ora ignored the tenant’s complaints; it did take steps to address the issues, however it did not take all the steps available to it.”

In considering compensation, the tenant sought $1,500 when she filed her application in December last year but asked for the amount be increased because of the nature and number of events between January and April this year.

Lash says the duration the tenant has been battling is of particular concern. “She has been trying to live peacefully since 2019 and her complaints have carried on for 16 months. She has spent a great deal of that time attempting to attain that right; her first visit to the tribunal obtaining her compensation but no real change. This cannot be acceptable.”

Lash placed some weight on the nature of the housing complex. “It is purpose built and used, and by that nature there will always be some level of behavioural issues for Kāinga Ora to deal with. This is a reality of this nature of housing and it would be trite to ignore that.

Taking all factors into account he awarded the tenant $2,000 compensation.

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