In recent weeks local Christchurch print media have reported a number of cases of tenants in social housing complexes being intimidated by other tenants. Whilst the provision of social housing does involve provision for tenants who may have high and complex needs, there are grounds for concern that social housing is increasingly seen as a cheap solution to pushing the resolution of these needs onto local communities rather than through the traditional provision of social services as has previously been the case.
In the experience of this blog, Kainga Ora has stated publicly that they will not take action against tenants unless a criminal matter is proven by the police. However, in the past, Kainga Ora has been found to be in breach of tenants’ rights by applying this standard. It appears that Otautahi Community Housing Trust, which is cited in a series of major articles published recently, particularly in relation to a complex on the south-western border of Christchurch, has been applying a similar policy.
Under the provisions of the Residential Tenancies Act, Section 45 (1) (e) provides that a landlord shall “take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.” Section 40 (2) (c) of the Act also states that the tenant shall not “cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.”
A brief reading of these clauses suggest that whilst the Section 40 clause requires a standard of criminal proof (contravention of this section being explicitly stated to be an unlawful act), and provides an option for a party other than the landlord to prosecute the tenant for breach of these provisions, and would in such a case necessarily require a process of prosecution through the court system, the Section 45 clause provides for a tenant to take their landlord to the Tenancy Tribunal for a breach of the clause and can result in the Tribunal making an order that the landlord is required to comply with the terms of this clause. An example may be found as recently as last year where a tenant received an award totalling nearly $2000 from Kainga Ora for its failure to ensure the s.45 clause was properly actioned in respect of two separate premises it let to the complainant, the second of them being a relocation option offered to the tenant after the first breach. Hence it can be reasonably inferred that use of a policy that a provider will not act unless criminal prosecution is taken by the Police or that it claims to be unable to act against a tenant causing problems, is not sufficient excuse for failing to act against a tenant.
It would be of considerable interest to discover whether the s.40 clause has ever resulted in successful action being taken against a landlord by a third party in the court system. The jurisdiction of the Tenancy Tribunal is specifically limited to actions between a tenant and their landlord and thus does not permit the Tribunal to act on a breach of s.40, hence it may be reasonably inferred that the clause can only be enforced in the normal court system. In the case of the current situations that have been recently reported, application to the Tribunal citing the recent TT case against Kainga Ora should be expected to result in action against OCHT or another social housing provider as their tenants do have rights that the provider(s) are failing to protect.
The real question to be answered is that Kainga Ora, Otautahi Community Housing Trust and other key social housing providers should provide supervised housing (e.g. boarding house accommodation with a residential manager) for high needs tenants to ensure the needs of vulnerable tenants are protected from antisocial, abusive or criminal behaviour by the former. Private provision of this type of accommodation already exists so there is no practical reason for a community housing provider to be unable to provide it for challenging tenants with a history of breaching these clauses of the Act.