Quan Shu also failed in his bid to end the tenancy because he sent the application to the tribunal on the same day he issued a 14-day breach notice to the tenant, who has name suppression.
The notice claimed the tenant continually engaged in loud/obscene and offensive verbal disputes involving his female partner; and caused other residents to be alarmed and disturbed and thereby violating body corporate operational rules as a tenant.
Shu claims he received phone calls from neighbours of the premises, pleading for the tenancy to end “the sooner the better”.
He says he felt pressured and hence he applied to the tribunal for termination immediately after having served the 14-day breach notice on the tenant on 27 September last year.
But a medical report dated October from the Auckland District Health Board diagnosed the tenant as suffering from PTSD, anxiety and BPD.
The mental health practitioner’s report says the tenant suffers from night terrors on a regular basis. During a night terror a person appears to awaken and scream or shout, but most of the time they are not actually awake. Those conditions can be embarrassing and the tenant experiences anxiety around what others may think of him, and judge him.
In response to a letter from the body corporate committee expressing extreme disappointment and concern a person of such obvious poor character was permitted to become tenant of the apartment, the mental health practitioner of 35 years’ experience told the tribunal the tenant’s conduct does not warrant termination of the tenancy. He says:
- Discriminatory incidents are too common and seem to come from individuals with a lack of compassion and respect. The elements include stigma, judgment and misunderstanding “usually caused by lack of education”;
- The tenant is a man of integrity, honesty, courage, loyalty, fortitude and other important virtues that promote good character;
- The tenant is not a violent man or one prone to violence;
- Hearing shouting in the middle of the night for some people may be quite terrifying but could be misconstrued as fighting or similar;
- While the couple have had normal couple disagreement on one occasion, which is probably involve louder than normal volume due to the tenant’s hearing difficulties, the tenant should be afforded the same respect and consideration as any other individual; and
- A person’s health issues are not a good enough excuse to have them removed from their home.
Adjudicator J Tam says the tenant’s mental health practitioner hopes the report will paint a better picture of the hurdles that he faces on a regular basis and demonstrated the need to have people properly educated so those who suffer can go about their lives as others who are fortunate enough not to face these challenges.
Shu told the tribunal he had no choice but to terminate the tenancy acknowledging that it is primarily a dispute between the tenant and the body corporate.
He says he was being charged $3,000 a week for security guards to be posted outside the tenant’s apartment. There are plans to on-charge these fees to the tenant. Shu says this ongoing situation is not sustainable and beyond his capability.
He wanted an immediate possession order so that it could be relayed to the security guards.
Tam says he is satisfied the landlord has no proper basis to allege and conclude the tenant has continually engaged in loud/obscene and offensive verbal disputes involving his partner.
“The fact that other residents on the level may be alarmed and disturbed only points to their own lack of education of mental health issues such as PTSD and night terrors suffered by the tenant.
“An occasional verbal argument between the couple in the premises in no way warrants immediate termination of the tenancy and displacement of the tenant’s lives.”
Similarly the landlord’s contention that the tenant has violated body corporate operational rules as a tenant and caused other residents on Level 11 to be “alarmed and disturbed” remain unsubstantiated, says Tam.
An October police letter says while they had been called to the apartment on three separate occasions with concerns of yelling and fighting, the complaints were “unsubstantiated”. No charges were laid and they have no immediate concerns regarding the occupants of the premises.
Tam says by immediately filing the application for termination of the lease on the same day the 14-day breach notice was served on the tenant, it does not appear to him Shu was genuinely expecting compliance of the notice. “Rather, the landlord was seeking to terminate the tenancy as soon as possible regardless of the subsequent actions of the tenant.”
Tam says he is not satisfied the tenant has committed breaches under the tenancy agreement and the RTA that warrants termination of the tenancy.