Anne Louisa Mary Haviland claimed the smell of the drug or drugs the landlord, who has name suppression, used every day and night permeated up into her apartment.
“I have owned my own medical practice so I know what Cannabus [sic] smells like. This is unacceptable behaviour of a landlord and has impacted on my (sic) greatly. Since you left a week ago, the smell has finally subsided, but has left a stale musty smell behind on the stairway.”
The allegation arose when Haviland wanted to terminate the fixed term tenancy from July 2020 to July 2021 early saying the washing machine was too small and being on the top floor of the premises was either too hot or too cold as well as alleging the landlord used drugs.
The landlord responded on April 2022, strongly disputing the Haviland’s allegation she used drugs, saying there were significant opportunities for Haviland to have raised concerns with her during the tenancy.
At this time the landlord was in the UK. While out of New Zealand she appointed an agent and gave Haviland the details.
On 29 April 2022 Haviland emailed the agent saying they had not been to the premises: “So you cannot make statements saying that [The landlord/s] is not dependent on drugs (or do you do drugs as well). You are an unreliable source of information.
Whereas I am the one that has been living here, breathing in her ‘shit’ day and night and her putrid toxic body smell at night when she sleeps. Which is sickening.”
Haviland emailed the agent again on 1 May saying “it seems you are not able to handle this situation property (sic) and in a straightforward democratic manner. As I have seen in the past your inability to handle any situation but in (sic) except in a agitated, not wanting to do anything as it should be, and just not by thinking normally, as a drug dependent person does”.
Because of the seriousness of the allegations, the landlord obtained a drug test in the UK four days after the email to the agent, at a cost of NZ$708.90. The hair analysis test detected no cannabis.
Six days later, Haviland emailed the landlord disputing that she had been notified in writing the agent was appointed to oversee the premises, and she would not agree to meet with the agent nor was the agent permitted to come into the premises and that: “also there is my health and safety to consider, as the agent has shown to me, in writing that she is biased and aggressive towards me.
“If she is as close a fried (sic) to you, as what you say, then I can only come to the conclusion that the agent takes drugs as often as yourself. Certainly her communication to me shows her inability to comprehend and understand my position.
“They doe (sic) say that Cannibus [sic] ‘fry’s the brain’. Therefore I will not met (sic) with her at any time and on any basis.”
Not only did Haviland make the allegations to the landlord but also to the police and council and the tribunal claiming the “landlady’s drug dependency needs addressing”.
On 29 June last year, Haviland emailed the landlord saying she was terminating the tenancy as of 3 July on the basis the premise were unlawful. An Auckland Council inspection did not find any breach of the Building Act and consent had been granted for two separate units and a Code of Compliance issued.
On 14 June, the landlord filed her application with the tribunal claiming rent arrears, carpet and cleaning costs, exemplary damages for Haviland changing the lock to the front door, light replacement and $2,000 in general damages on the basis of emotional stress and anxiety due to unsubstantiated claims from the tenant, such as the allegations around drug use, or in relation to needing to “smell the stench of the landlord at night”.
Haviland filed a tribunal application on 1 July to terminate the tenancy early – which turned out to be four days before it was due to end.
Haviland’s only evidence about drug use by the landlord was “she could smell cannabis”. Tribunal adjudicator R Woodhouse says that in his view that was weak evidence. “The tenant has not given evidence of seeing the landlord use cannabis she has also not presented qualifications which would lead me to conclude the tenant would have sufficient expertise to be able to reliably confirm an odour was cannabis.
“So far as the allegations against the landlord's agent are concerned, there is even less evidence supporting that claim. It seems the tenant has taken to believe the agent uses drugs based on communications, without even meeting her.
“I find the tenant has not proven either the landlord or her agent used drugs of any sort and the allegations are unsubstantiated.”
Woodhouse says it is not difficult to see how the landlord would have been affected by those allegations, particularly as the tenant has not been able to establish any of the allegations as fact or even likely fact.
Having observed the landlord at two hearings, Woodhouse says he accepted landlord has been severely impacted by the tenant’s actions. “I also consider the tenant has not realised the effect her allegations have had on the landlord”.
The landlord says Haviland defamed her and made baseless claims to the Auckland City Council. As a result of her experiences, she told the tribunal she does not feel she would be able to rent the premises again as she has been traumatised by the tenant.
Despite this, Woodhouse says that does not mean the tribunal can order damages for the landlord.
“The tribunal can only make orders which relate to a breach of the tenancy agreement, or an order the High Court could make in relation to contracts. In this case there is no term in the tenancy agreement which required mental satisfaction of the contract, so as to be a basis to make any order.”
However, Haviland was ordered to pay $3,984.71 to the landlord for rent arrears, carpet cleaning, lock and light fittings replacement. The net award was $1,744.71 as the $2,240 bond had already been forfeited to the landlord at an earlier hearing.
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