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New Pathway to Address Anti-social Behaviour

28-May-2021 10:43:21

1066126_PropertyManagementFocusNewsletter-May21_WebsiteHeader1_052021

The Residential Tenancies Amendment Act 2020 provides landlords with a new pathway for responding to anti-social behaviour in periodic tenancies. These changes were effective from 11 February 2021.

These changes are in addition to the existing options available for resolving anti-social behaviour under the Residential Tenancies Act 1986 (RTA), which usually require quite serious behaviour before the Tenancy Tribunal will agree to end the tenancy. The new changes are designed to cover situations of antisocial behaviour that reoccur, and that are more than minor, which are not currently addressed by the RTA.

Why was this introduced?
When the Government sought feedback from the property management sector on the proposed changes to the RTA, landlords advised that one of the reasons they issued 90 day no-cause termination notices (applicable only to periodic tenancies) was due to anti-social behaviour. So, when the RTA Amendments were introduced and the ability to serve a 90 day no-cause termination notice was removed, the legislation provided a new pathway for responding to anti-social behaviour in periodic tenancies.

What is anti-social behaviour?
The Ministry of Business, Innovation and Employment (MBIE) has provided some general examples of behaviour that may be considered antisocial, depending on the situation:

  • loud, aggressive behaviour by tenants towards the neighbours or to each other if it reasonably causes alarm or distress to others
  • parking across a shared driveway repeatedly, especially if someone is not readily available to move the vehicle
  • leaving rubbish in shared areas/footpaths – the longer that it is not removed and the more dangerous or smelly the rubbish is, the more likely this will be viewed as anti-social behaviour that is more than minor
  • noise control callouts where a problem has been found
  • any intimidating behaviour, including ‘hate speech’ expressing hate or behaviour that encourages violence towards someone based on race, religion or sexual orientation
  • invasion of privacy by, for example, peeping or peering into someone’s home, including via CCTV, or loitering on someone else’s property
  • graffiti or other damage to a neighbour’s property or public property.

Note: This is a new change to the law and this guidance is provided in good faith. It will be regularly reviewed and may be revised as future Tenancy Tribunal decisions provide greater clarity.

Possible examples under the new law changes:

Loud music and singing in early morning hours.
A landlord receives reports of a tenant who sings loudly to music after midnight most nights, including weeknights. This noise keeps neighbours awake as it is a nuisance and causes distress due to ongoing disturbance and repeated instances of missed sleep. This ongoing behaviour does not comply with Council noise rules.

Tenant parks over shared driveway
A landlord receives reports that a tenant has parked across a driveway that is shared with the neighbour, blocking the exit and entry of the driveway. The neighbour has previously asked the tenant not to park over the shared driveway when the tenant did it in the past, because the neighbour has mobility issues and health concerns and needs to be able to use the driveway. The tenant left the car there for over an hour and was not around to answer requests to move the car. The tenant did not have a good reason for parking over the shared driveway on this occasion.

What if the behaviour only happens once?
The notice that is served for each instance of antisocial behaviour states clearly what can happen if there are further instances. It is anticipated that in most cases, the first notice will serve as educating a tenant and will therefore result in a change of behaviour.

Process
There is a very specific process that landlords must follow with regards to issuing notices for anti-social behaviour and they may only apply to the Tenancy Tribunal to end a periodic tenancy if:

  • on three separate occasions within a 90-day period, a tenant (or a person in the premises with the tenant’s permission) has engaged in anti-social behaviour in connection with the tenancy;
  • and – a valid notice for anti-social behaviour was served on the tenant following each of those occasions.

Existing Provisions Retained
This new provision for dealing with anti-social behaviour is in addition to the existing provisions already provided for in the Act. The RTA already enables a landlord to apply to the Tenancy Tribunal to end a tenancy where the tenant:

  • has assaulted or threatened to assault the landlord or their family, the owner or their family, neighbours, or other occupants of the building, or
  • has caused, or permitted another person to cause, or has threated to cause, substantial damage to the premises.

An incident like those above need only to occur once before a landlord can apply to the Tenancy Tribunal to terminate a tenancy – these existing sections are being retained as part of the RTA and landlords will still be able to use them. The new RTA changes apply when the tenant or a person in the premises with the tenant’s permission engages in anti-social behaviour three times within a 90-day period.

The RTA also enables a landlord to apply to the Tenancy Tribunal to end a tenancy where the tenant breaches their obligations under the RTA or their tenancy agreement. For example, a breach of their obligation to not interfere with the reasonable peace, comfort or privacy of neighbours, or a breach of their obligation to not use the premises for an unlawful purpose.

Harcourts Property Managers have attended training on how to manage the process if a tenant engages in anti-social behaviour. We anticipate that, in the majority of cases, the first notice for anti-social behaviour will educate the tenant that the behaviour is not acceptable and will result in a change of behaviour by the tenant.

Source: https://www.tenancy.govt.nz/assets/Uploads/Tenancy/antisocial-behaviour-factsheet-a3.pdf

This article is featured in Harcourts Property Management Focus, Issue 5 2021.

Topics: Property Management, Landlords, Advice, Tenants