What was the outcome of Tenancy Tribunal case 4418240?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4418240?

Compensation: failure to maintain, b…: $1,666.00 awarded to tenant; Compensation: Unlawful Premises: $1,050.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4418240?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4418240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9514463-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4418240?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4418240?

Compensation: failure to maintain, b…: $1,666.00 awarded to tenant; Compensation: Unlawful Premises: $1,050.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4418240?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4418240?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9514463-Tribunal_Order.pdf.

15A Wade Place, Welcome Bay, RD 5, Tauranga 3175 Tenancy Tribunal Case 4418240 — State of repair

Claims and awards in Tenancy Tribunal application 4418240 — net $2,736.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failure to maintain, breach of quiet enjoyment, loss of amenity, no heating	$1,666.00	failure to maintain, breach of quiet enjoyment, loss of amenity, no heating
Compensation: unlawful premises	$1,050.00	unlawful premises
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,736.44
Total payable by Landlord to Tenant	$2,736.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Matthew Alan Chandler and Michaela Julius must pay Pauline Karyn Message $2,736.44 immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
This tenancy commenced on 23 April 2018 and ended on 13 October 2022.
Ms Message seeks her bond, compensation, and exemplary damages for a total of $15,000.00 (to include the bond of $1,200.00).
Ms Message confirmed that she has now received the bond in full, so her claim is reduced to $13,800.00.
The relevant issues to be decided are as follows: a. Can the premises be lawfully occupied for residential purposes? b. Did the landlord breach their maintenance obligations and the tenant’s quiet enjoyment? c. Did the landlord fail to lodge the bond as required?

Can the premises be lawfully occupied for residential premises?

The Tribunal may declare premises to be unlawful residential premises. 1 See section 77(2)(ac) Residential Tenancies Act 1986 (RTA). Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) of the Act.
There is no dispute that the premises is only consented as a sleepout. The landlord says it is double glazed and fully insulated and there were no issues throughout this tenancy until a leak from the hot water cylinder on 10 July 2022.
I find that the premises cannot be lawfully occupied for residential purposes. I find that the landlord caused or contributed to the unlawful occupation by failing to comply with section 36 RTA.
It is incumbent on the Tribunal to decide on the special circumstances of each case, what would be fair to deduct from a return of all rent.
I also bear in mind that the Tribunal must determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities (see section 85(2) RTA).
Several recent Tribunal decisions have taken the following factors into account: 1 Section 77(2)(ac) and section 78A inserted, on 27 August 2019, by section 17(1) and 19 of the Residential Tenancies Amendment Act 2019 (2019 No 37). a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenant’s motivation for renting the property and bringing the claim, and the length of and time she lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenant received in renting the property. e. The seriousness of the regulatory breaches making the premises unlawful. f. Any other breaches by the landlord. g. Any detriment or loss the tenant suffered. h. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. i. The public interest in discouraging unlawful tenancies. i. Any other compensation or exemplary damages that are ordered.
I find that the special circumstances are significant. In particular, the tenant had been living at the premises for approximately 4.5 years and only raised this claim after a leak occurred and relationships deteriorated. Taking everything into account and weighing the substantive merits and justice, I find it appropriate and fair to make an award of $1050.00 equivalent to 3 weeks rent to acknowledge the unlawful status of the premises.
The landlord should be mindful that there is a strong public interest in discouraging unlawful tenancies and ensuring that shortcuts are not taken. The landlord must ensure that the proper consents/permissions are in place if they intend to rent out the premises for future residential use. The current standing of the premises must be regularised to ensure that matters such as means of escape from fire, sanitary facilities, and structural integrity are satisfied under the Building Code. Did the landlord breach their maintenance obligations and the tenant’s quiet enjoyment?
Pauline Karyn Message claims that the landlord has breached their obligations under section 45 and section 38 of the Residential Tenancies Act 1986.
Under section 45, a landlord must [of relevance here] -provide and maintain the premises in a reasonable state of repair -comply with any relevant enactment in relation to buildings, health and safety.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The provision of an approved form of heating for every living room is one of the requirements set out in the Housing Improvement Regulations 1947 (Regulation 6).
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
The tenant says she was not provided with any heating so she used her own heater, the driveway was dangerous and unusable, and fruit trees were not properly maintained and blocked the light. The tenant says she had to live in substandard conditions when there was a leak from the hot water cylinder on 20 July 2022. The floors were lifted, and the bathroom vanity was removed for around 3 months. The repairs finally commenced on 7 October and the toilet, shower and hot water cylinder were all removed on 10 October. The tenant says she was not informed in advance as she had been cleaning the bathroom in anticipation of the end of tenancy and final inspection.
I find that the landlord has breached their obligations in relation to lack of heating. The landlord was unable to provide any evidence to substantiate their claim that they purchased a heat pump for the sleepout at the same time as they purchased one for their own home, but the tenant did not want it installed. However, there is no evidence that the lack of heating was ever raised with the landlord so that they could remediate so I decline to make any award for compensation.
I find that the tenant has not provided sufficient evidence to prove that the driveway was dangerous and unusable. I accept the landlord’s evidence that the tenant’s parking spot was at the top of the driveway and the premises was accessed via a series of steps and not via the driveway. I also accept their evidence that they have been making repairs as grass has been replaced by gravel and compacted to reduce the gradient, but this was not yet been completed. Regardless, the driveway was not useable at the start of the tenancy and remained that way for the duration so there can be no breach.
The tenant has not provided sufficient evidence to prove that the landlord did not prune trees as requested. On the tenant’s own evidence, some work was done to cut back branches and I do not accept that the trees would have obscured the light on that side of the premises as they only came to halfway in any event.
However, I find that the landlord has breached their maintenance obligations in respect of the living conditions for 3 months after the leak and in particular during the last week of the tenancy when the repairs were done. This has also inevitably led to a breach of the tenant’s quiet enjoyment of the premises as the tenant had to live with the majority of the flooring pulled up, dehumidifiers to dry the area out, and the removal of the bathroom vanity. I find that the premises were likely uninhabitable for the last week of the tenancy therefore the tenancy should be reimbursed in full for rent paid of $350.00. I also find that the tenant should be compensated for the unreasonable delays and disruptions and loss of amenity during the 3 month period, so I reduce the rent payable by one third to $1316.00 as fair, reasonable, and proportionate compensation.
I decline to make any award of exemplary damages due to the lack of requisite intent. This part of the claim is dismissed.

Did the landlord fail to lodge the bond as required?

Ms Message claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord does not dispute the bond was not lodged. I accept their evidence that they always considered Ms Message as family, and they believed this was a flatting/boarding type situation (see previous Tribunal order dated 25 November 2022). The bond has been paid back to Ms Message in full.
I find the landlord has committed an unlawful act but in these circumstances I do not find it ‘just’ to make any award of exemplary damages.
This part of the claim is dismissed. Filing fee
As the tenant has partly succeeded with the claim, the landlord must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4418240 — net $2,736.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failure to maintain, breach of quiet enjoyment, loss of amenity, no heating	$1,666.00	failure to maintain, breach of quiet enjoyment, loss of amenity, no heating
Compensation: unlawful premises	$1,050.00	unlawful premises
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,736.44
Total payable by Landlord to Tenant	$2,736.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Matthew Alan Chandler and Michaela Julius must pay Pauline Karyn Message $2,736.44 immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
This tenancy commenced on 23 April 2018 and ended on 13 October 2022.
Ms Message seeks her bond, compensation, and exemplary damages for a total of $15,000.00 (to include the bond of $1,200.00).
Ms Message confirmed that she has now received the bond in full, so her claim is reduced to $13,800.00.
The relevant issues to be decided are as follows: a. Can the premises be lawfully occupied for residential purposes? b. Did the landlord breach their maintenance obligations and the tenant’s quiet enjoyment? c. Did the landlord fail to lodge the bond as required?

Can the premises be lawfully occupied for residential premises?

The Tribunal may declare premises to be unlawful residential premises. 1 See section 77(2)(ac) Residential Tenancies Act 1986 (RTA). Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) of the Act.
There is no dispute that the premises is only consented as a sleepout. The landlord says it is double glazed and fully insulated and there were no issues throughout this tenancy until a leak from the hot water cylinder on 10 July 2022.
I find that the premises cannot be lawfully occupied for residential purposes. I find that the landlord caused or contributed to the unlawful occupation by failing to comply with section 36 RTA.
It is incumbent on the Tribunal to decide on the special circumstances of each case, what would be fair to deduct from a return of all rent.
I also bear in mind that the Tribunal must determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities (see section 85(2) RTA).
Several recent Tribunal decisions have taken the following factors into account: 1 Section 77(2)(ac) and section 78A inserted, on 27 August 2019, by section 17(1) and 19 of the Residential Tenancies Amendment Act 2019 (2019 No 37). a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenant’s motivation for renting the property and bringing the claim, and the length of and time she lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenant received in renting the property. e. The seriousness of the regulatory breaches making the premises unlawful. f. Any other breaches by the landlord. g. Any detriment or loss the tenant suffered. h. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. i. The public interest in discouraging unlawful tenancies. i. Any other compensation or exemplary damages that are ordered.
I find that the special circumstances are significant. In particular, the tenant had been living at the premises for approximately 4.5 years and only raised this claim after a leak occurred and relationships deteriorated. Taking everything into account and weighing the substantive merits and justice, I find it appropriate and fair to make an award of $1050.00 equivalent to 3 weeks rent to acknowledge the unlawful status of the premises.
The landlord should be mindful that there is a strong public interest in discouraging unlawful tenancies and ensuring that shortcuts are not taken. The landlord must ensure that the proper consents/permissions are in place if they intend to rent out the premises for future residential use. The current standing of the premises must be regularised to ensure that matters such as means of escape from fire, sanitary facilities, and structural integrity are satisfied under the Building Code. Did the landlord breach their maintenance obligations and the tenant’s quiet enjoyment?
Pauline Karyn Message claims that the landlord has breached their obligations under section 45 and section 38 of the Residential Tenancies Act 1986.
Under section 45, a landlord must [of relevance here] -provide and maintain the premises in a reasonable state of repair -comply with any relevant enactment in relation to buildings, health and safety.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The provision of an approved form of heating for every living room is one of the requirements set out in the Housing Improvement Regulations 1947 (Regulation 6).
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
The tenant says she was not provided with any heating so she used her own heater, the driveway was dangerous and unusable, and fruit trees were not properly maintained and blocked the light. The tenant says she had to live in substandard conditions when there was a leak from the hot water cylinder on 20 July 2022. The floors were lifted, and the bathroom vanity was removed for around 3 months. The repairs finally commenced on 7 October and the toilet, shower and hot water cylinder were all removed on 10 October. The tenant says she was not informed in advance as she had been cleaning the bathroom in anticipation of the end of tenancy and final inspection.
I find that the landlord has breached their obligations in relation to lack of heating. The landlord was unable to provide any evidence to substantiate their claim that they purchased a heat pump for the sleepout at the same time as they purchased one for their own home, but the tenant did not want it installed. However, there is no evidence that the lack of heating was ever raised with the landlord so that they could remediate so I decline to make any award for compensation.
I find that the tenant has not provided sufficient evidence to prove that the driveway was dangerous and unusable. I accept the landlord’s evidence that the tenant’s parking spot was at the top of the driveway and the premises was accessed via a series of steps and not via the driveway. I also accept their evidence that they have been making repairs as grass has been replaced by gravel and compacted to reduce the gradient, but this was not yet been completed. Regardless, the driveway was not useable at the start of the tenancy and remained that way for the duration so there can be no breach.
The tenant has not provided sufficient evidence to prove that the landlord did not prune trees as requested. On the tenant’s own evidence, some work was done to cut back branches and I do not accept that the trees would have obscured the light on that side of the premises as they only came to halfway in any event.
However, I find that the landlord has breached their maintenance obligations in respect of the living conditions for 3 months after the leak and in particular during the last week of the tenancy when the repairs were done. This has also inevitably led to a breach of the tenant’s quiet enjoyment of the premises as the tenant had to live with the majority of the flooring pulled up, dehumidifiers to dry the area out, and the removal of the bathroom vanity. I find that the premises were likely uninhabitable for the last week of the tenancy therefore the tenancy should be reimbursed in full for rent paid of $350.00. I also find that the tenant should be compensated for the unreasonable delays and disruptions and loss of amenity during the 3 month period, so I reduce the rent payable by one third to $1316.00 as fair, reasonable, and proportionate compensation.
I decline to make any award of exemplary damages due to the lack of requisite intent. This part of the claim is dismissed.

Did the landlord fail to lodge the bond as required?

Ms Message claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord does not dispute the bond was not lodged. I accept their evidence that they always considered Ms Message as family, and they believed this was a flatting/boarding type situation (see previous Tribunal order dated 25 November 2022). The bond has been paid back to Ms Message in full.
I find the landlord has committed an unlawful act but in these circumstances I do not find it ‘just’ to make any award of exemplary damages.
This part of the claim is dismissed. Filing fee
As the tenant has partly succeeded with the claim, the landlord must reimburse the filing fee.

Tenancy Tribunal case 4418240 — State of repair at 15A Wade Place, Welcome Bay, RD 5, Tauranga 3175

At a glance

Tenancy Tribunal case 4418240 — State of repair at 15A Wade Place, Welcome Bay, RD 5, Tauranga 3175

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Can the premises be lawfully occupied for residential premises?

Did the landlord fail to lodge the bond as required?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Can the premises be lawfully occupied for residential premises?

Did the landlord fail to lodge the bond as required?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions