What was Tenancy Tribunal case 4463187 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4463187?

Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4463187?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4463187?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9293477-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4463187 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4463187?

Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4463187?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4463187?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9293477-Tribunal_Order_Redacted.pdf.

7 Brothers Street, New Windsor, Auckland 0600 Tenancy Tribunal Case 4463187 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4463187 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Exemplary damages: Health Homes	$750.00	Health Homes
Net award	$770.44
Total payable by Landlord to Tenant	$770.44

Claims and awards in Tenancy Tribunal application 4463187 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Exemplary damages: Health Homes	$750.00	Health Homes
Net award	$770.44
Total payable by Landlord to Tenant	$770.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The landlord’s cross application is dismissed.
The tenancy is a residential tenancy accordingly, the Tribunal has jurisdiction to hear the substantive applications.
Sun Qian must pay [The tenant/s] $770.44 immediately.

Reasons

Both parties attended the hearing. The parties were assisted by the court appointed Mandarin interpreter.
The tenant claims that the landlord has breached her obligations under the Healthy Homes requirements.
The landlord has lodged a cross application claiming rent arrears. The landlord also argues that s5(1)(n) of the Residential Tenancies Act 1986 (“the Act”) applies and excludes this tenancy from the provisions of the Act.
For the reasons outlined below, I am not satisfied that s5(1)(n) applies. Accordingly, this is a residential tenancy to which the Act applies.

Is this an excluded tenancy?

Section 4 provides that This Act applies to every tenancy for residential purposes except as specifically provided
The exceptions to the Act are contained in Section 5. Relevantly, section 5(1)(n) of the Act provides that where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
“Residential premises” is defined in section 2(1) of the Act as any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful
“Premises” is defined in section 2 of that Act as including: (a) Any part of any premises; and (b) Any land and appurtenances, other than facilities; and (c) Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land.
Section 10 of the Act provides that Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
So, in the present case, the landlord must prove, on the balance of probabilities, that section 5(1)(n) applies. Caselaw
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.
The High Court considered the definition of premises in the decision of Kahi v Lucas HC Auckland HC81/96, 23 September 1996. Justice Anderson concluded that the definition of “premises” in section 2 of the Act is inclusive and not exhaustive. Anderson J referred to the Shorter Oxford Dictionary to conclude the ordinary and usual meaning of premises is: A house or building with its grounds etc. Also (a part of) a building housing a business etc.
The Court concluded that It is perfectly plain that premises may itself contain premises, hence the definition in the Shorter Oxford Dictionary referring to “part of a building. Background
The tenancy began on 1 December 2019. The tenant vacated the premises on 20 January 2023.
The property is a two-level house. The upper level has three bedrooms, a kitchen and living area and is occupied by the landlord. The lower level has two bedrooms and two bathrooms. There is also a small kitchenette with a microwave, bench top oven and a fridge which is shared by both tenants. Both bedrooms are occupied by separate tenants.
The downstairs level has a front door of which the landlord enters and exits. The tenants use their bedroom sliding doors to gain entry but can exit through the front door.
There is no internal wall preventing the tenants from using the stairs to the upper level. While there is nothing which physically prevents the tenants from going upstairs there is an expectation that they will not.
The living arrangement has been a stressful one for the tenant and his family. At one stage the police became involved when there was an allegation of assault against the tenant.
The outside area of the property consists of a driveway with off-street parking. The tenant was allowed to park his car on the property if it did not block other vehicles.
There was an expectation that the tenant and his family would not go around the back of the house. The tenant’s wife would occasionally walk around the back of the house. This was not welcomed by the landlord.
The landlord’s husband mowed the lawn for the entire property. Landlord’s application
The landlord has applied for rent arrears of $666.00.
The landlord sent the tenant a supposed 14-day notice in respect of rent arrears. This was in the form of a WeChat message. There were also two further WeChat messages sent to the tenant in respect of rent arrears and termination.
The landlord also says that the tenant is merely a flatmate and not a tenant. During the second hearing day a Flat/House-Sharing Agreement dated 2 February 2020 was produced by the tenant. In explanation the tenant stated that his immigration adviser suggested he signed this agreement in support of his visa application.
The landlord stated that in the Chinese community they do not have a difference between flatmate and tenant. She says that the room was advertised on ‘Sky Kiwi’ as a room to rent. The landlord says that it was for an open period and was paid two weeks rent and two weeks as bond. The bond was not paid to the bond office. It was not clear whether this money was paid in cash or by bank transfer. The tenant says that he may have paid partly in cash.
The landlord further stated that the tenant was aware of the arrangement when he viewed the property. She says that the tenant was only showed the downstairs area of the house. She further stated that there was never a need for the tenants to go upstairs.
The landlord only went downstairs to sort out any issues. The landlord also had a chest freezer downstairs in the kitchenette and would go downstairs if she needed something from the freezer.
The landlord stated during the hearing that the tenant could vacate at any time and did not need to give reasons.
The landlord says that the rent was paid each fortnight. She says that the tenant for the most part paid the rent in cash. She says that she did not keep formal records of rent payments. Tenant’s application
The tenant has applied for compensation on the basis that the premises are not up to Healthy Homes Standards. The tenant says that the premises were harmful to the health of his family, especially their young son. The tenant further states that there was no smoke alarm installed and that the room was dark and damp with no heating in winter. The landlord stated that the tenant had his own heater.
The landlord initially stated that there were no smoke alarms downstairs but then later stated that there was one in the hallway. She said that she replaced the batteries and put it back. The tenant does not accept this.
The tenant further stated that when he applied for the room he was of the belief that he was applying as a tenant. Power was included with the rent. The rent was paid directly to the landlord.
The tenant stated that on 19 December 2022 he went upstairs to speak with the landlord. The landlord was having a meal at the time. The tenant says that the landlord yelled at him telling him to go back downstairs. He says he felt bullied. The landlord stated that the tenant came upstairs angry. After that the tenant was not allowed to park on the property. He says that the landlord would ask him to move his car if she saw it parked in the driveway.
The tenant also stated that the downstairs area leaked in heavy rain. The landlord accepted this and took steps to rectify by digging a trench along the side of the house. Discussion
I do not consider this to be a flatmate arrangement. The difference between a flatmate and a tenant is that a tenant obtains a right to occupy the premises. A flatmate resides in the premises by way of a licence from either the owner, or a tenant who would have a contractual relationship with the landlord.
In Musson v Dobrisek 2006 03236, District Court, Lower Hutt, 5 May 2006, the District Court considered the issue of flatmates. The court held that’ “.... the use of the word “flatmate” does not in itself define the legal relationship between flatmate and landlord.” “by “flatmate” I understand a co-operative arrangement whereby, in a fundamental sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”
In Bailes v Nalini (2020) NZTT 4261603, 4268721, North Shore, the Tribunal held in similar circumstances in considering the issue of jurisdiction where there was a “flatmate agreement”, that; “The fact that the parties have entered into a “flatmate” agreement which records that the RTA does not apply, is of no effect. That is because section 11 of the RTA confirms that the parties cannot contract out of the RTA, to the tenant’s detriment. That provision holds:
Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify or restrict the operation of any such provision, shall be of no effect unless- (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification should be permitted. (2) Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.”
The RTA does not provide any permission for the provisions of the RTA to be excluded in a tenancy such as this, and furthermore, the Tenancy Tribunal would not permit the contracting out to the tenant’s detriment. That means the obligations between the tenant and landlord in the RTA certainly apply.
The factors in favour of this are the separate entrance, facilities and living areas. There was no communal living, or shared space. I accept the evidence that the tenants were not entitled to access the full house.
The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must: provide the premises in a reasonable state of cleanliness provide and maintain the premises in a reasonable state of repair comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health and safety.
The tenant provided a number of photographs in support of his application. The photographs clearly showed the condition of the downstairs area of the house. I also suspect that the living area downstairs, in particular the kitchenette, is non- consented. I note that merely as an observation.
Having sighted the evidence provided by the tenant I am satisfied that the landlord has breached their obligations in respect of this tenancy. I am also satisfied that the condition of the tenant’s living area was unsafe and would not have complied with the Healthy Homes Standards.
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 landlord has the onus to prove that the premises do comply under the Residential Tenancies Act. They have not done so.
I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
Accordingly, I award a global amount to reflect the failings by the landlord in this regard.
The landlord’s cross application is dismissed as the claim for rent arrears is not supported by the evidence provided with the application.
Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4463187 — Exemplary damages at 7 Brothers Street, New Windsor, Auckland 0600

At a glance

Tenancy Tribunal case 4463187 — Exemplary damages at 7 Brothers Street, New Windsor, Auckland 0600

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is this an excluded tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is this an excluded tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions