What was Tenancy Tribunal case 4474680 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 4474680?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4474680?

The dispute type was not classified.

Where can I read the official tribunal order for case 4474680?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10058435-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4474680 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 4474680?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4474680?

The dispute type was not classified.

Where can I read the official tribunal order for case 4474680?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10058435-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4474680 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
The Tribunal declares that the downstairs premises rented to this tenant were unlawful residential premises.
[The landlord/s] must pay [The tenant/s] $25,140.44 immediately, calculated as shown in table below.

Reasons

This is a rehearing of the tenant application numbered 4474680 and a hearing of the landlord application numbered 4556849.
Both parties attended the hearings on 26 July 2023, 18 October 2023 and 28 February 2024.
[The tenant’s representative] attended as representative for the tenant and [The landlord’s agent] attended as representative for the landlord. Both parties were granted leave to have representatives on 26 July 2023.
The Tribunal heard submissions and received extensive evidence from both parties. Evidence was also heard from [witness], a former tenant of the upstairs of the house. Background
The tenant was a recent immigrant and in 2018 she and her husband and son moved into the downstairs of a house owned by [The landlord/s] and [The landlord's ex-husband]. The parties entered into an agreement on 30 June 2018. At the time the landlord was recorded as [The landlord's ex-husband].
[The landlord's ex-husband] lived in a room in the upstairs of the premises. The upstairs of the house was rented out under a separate agreement to different occupants.
In about mid 2020 [The landlord's ex-husband] moved out of the upstairs and [The landlord/s] who lived overseas took over as landlord. [The landlord/s] advised that the property is now registered in the name of [The landlord's son] and produced a copy of an authority signed by him appointing her and [The landlord’s agent] as agent and property manager.
The parties appeared to have a good relationship until communication difficulties arose toward the end of 2022.
[The tenant/s] and her family moved out of the premises on 15 January 2023. Claims
The tenant claims that the premises are unlawful residential premises and seeks a rent refund.
Further the tenant claims the following: (a)The landlord failed to maintain the premises in a reasonable state of repair and failed to comply with building requirements in respect of the kitchen (b)The landlord failed to lodge the bond (c)The landlord did not provide smoke alarms (d)The landlord failed to appoint an agent when out of New Zealand (e)The landlord unlawfully entered the premises and breached the tenant’s quiet enjoyment of the premises (f)The notice to terminate the tenancy was retaliatory
The landlord disputes the tenant claims and claims that the parties were not in a residential tenancy but instead a flatmate relationship or alternatively that the premises are excluded as the landlord was also living in the premises.
The landlord has filed a counter claim stating: (a)The tenant did not give notice before moving out of the premises, (b)The tenant did not remove all rubbish at the end of the tenancy, (c)The tenant used the premises’ garages and yard, which were not included in the agreement, for commercial purposes, (d)Damage was caused to the premises by the tenant’s dog. Issues to determine
The issues for the Tribunal to determine are: (a) Are the parties in a landlord/tenant relationship for a residential tenancy? (b) If yes, were the premises principally the place of residence of the owner and therefore is this tenancy excluded by section 5(n) of the Residential

Tenancies Act 1986?

(c) Are the premises unlawful residential premises? (d) If the premises are unlawful what amount of rent refund should the tenants receive? (e) If the premises are lawful, the Tribunal must proceed to consider the remainder of the tenant and landlord claims.

Are the parties in a landlord/tenant relationship for a residential tenancy?

The Tenancy Tribunal has jurisdiction to determine any dispute that exists between a landlord and a tenant and relates to any tenancy to which this Act applies. See section 77(1) Residential Tenancies Act 1986.
The Residential Tenancies Act 1986 applies to every tenancy for residential purposes unless specifically excluded. See section 4 of the Residential Tenancies Act 1986 (“RTA”).
The Tribunal therefore must consider whether the parties are landlord and tenant.
[The tenant/s] claims that she was a tenant and rented premises from the landlord.
[The landlord/s] claims that the parties were not landlord and tenant but in a house sharing or flatmate arrangement.
In determining whether the parties were in a house sharing or a landlord/tenant relationship there is a need to look at the nature of the relationship between the parties.
The District Court has stated “By ‘flatmates’ I understand a co-operative arrangement whereby, in a functional 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.” See Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006 18.
The agreement between the parties was entered in to by [The landlord's ex- husband] and [The tenant/s]. [The landlord/s] was overseas when the agreement began.
[The landlord's ex-husband] did not attend the hearing to give evidence. [The landlord/s] has provided some written statements from him but these are hearsay as he did not attend. The only evidence available from the time the agreement commenced is the evidence of [The tenant/s] and the written agreement between the parties.
The agreement entered in to between the parties is written in Chinese. Each party has provided an English translation of the agreement. The agreement is dated 30 June 2018.
There are some differences in the translation but both versions record the landlord as [The landlord's ex-husband] and the occupant as [The tenant/s]. It is recorded that the address is “[Tenancy address suppressed] (downstairs)” and “[Tenancy address suppressed], the bottom section”.
The recorded weekly payment is $380 with a bond or deposit of $1520.
Both translations record that [The tenant/s] must pay the power/electricity cost according to the reading of the meter downstairs.
Both translations record the agreement is from 7 July 2018 to 5 July 2019 to be renewed or cancelled on at least 4 weeks’ notice.
The agreement is signed by [The landlord's ex-husband] and [The tenant/s].
The tenant stated that the area her family lived in was 3 rooms a bathroom and a small living area downstairs. The tenant stated that the kitchen provided was in a shed on the deck which had a sink and gas cooker.
The parties disagreed whether the garages which were also downstairs were included in the agreement. The tenant claimed yes but the landlord claimed they were not included.
The tenant stated that the door at the top of the stairs was locked and they could not access the upstairs of the house from their side as this was occupied by other people.
The tenant brought a witness who was the former upstairs tenant. She stated that while she was in occupation there were no facilities shared with the downstairs tenant. She provided a photograph of the premises taken while she was living there which showed a bolt lock on the upstairs side of the door and a cabinet across the doorway that led to downstairs. She stated that the lock was on the upstairs side of the door and they had control of this. Once they became friendly with the downstairs tenant from 2022, they would sometimes leave the door unbolted.
The landlord denied that only the downstairs was rented to the tenant and stated that she was told she could use the upstairs kitchen, but she chose to use the kitchen in the shed. The landlord agreed that they had installed shelves in the shed for the tenant. The landlord stated that there was access between upstairs and downstairs as they had entered the tenant’s area from upstairs in 2022.
The landlord advised that the tenant was charged power by a separate check meter for the lights downstairs only.
Having considered the evidence I find that the parties were not in a house sharing arrangement but in a landlord/tenant relationship for the downstairs of the premises for the following reasons: -The agreement dated 30 June 2018 records that the downstairs/bottom section was rented to [The tenant/s] -The premises had a separate power meter for downstairs and the tenant was only charged for this power -The premises had a separate external entrance from the upstairs premises. -The tenant did not use the upstairs kitchen but cooked in the tin shed provided with a sink and gas cooker -At the hearing the landlord stated that the tenant could access the whole house but then stated that the garage could not be used -While the tenant was living downstairs the upstairs of the house was rented out to separate tenants under a different tenancy agreement. -The downstairs tenant had no say in choosing the upstairs tenant. -The upstairs occupants had control of the connecting door and the downstairs tenants could not access if the bolt on the upstairs side was locked -The parties were not in a sharing arrangement as they were not on an equal footing. The tenant paid rent to the landlord, the landlord charged the tenant for the downstairs power, the tenant did not have free access to common areas in the rest of the house including the kitchen and garages.
Therefore, I find that the parties are in a landlord tenant relationship for a residential tenancy of the downstairs of the premises. Is the tenancy excluded pursuant to section 5(1)(n)?
Section 5(1)(n) of the RTA states that the premises are excluded from the Act if they “continue to be used during the tenancy, principally as a place of residence by the landlord or owner of the premises”.
In this case the current [The landlord's ex-husband], who was also the landlord and joint owner of the premises at that time was living in an upstairs room of the house when this tenancy commenced. However, shortly afterwards the upstairs was rented to two other people and in 2020 [The landlord's ex-husband] moved out of the premises.
I find that even though [The landlord's ex-husband] was living upstairs this was not the area rented to this tenant and in any event, he did not continue to use the premises as his principal place of residence during the tenancy as he moved out in 2020.
Therefore, this exclusion does not apply.

Are these premises unlawful residential premises?

The Tribunal may declare premises to be unlawful residential premises. See section 77(2)(ac) Residential Tenancies Act 1986. 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. See sections 78A(3)(a), (4) and (5) RTA.
The tenant claims the premises are unlawful as the landlord did not have council consent to rent the upstairs and downstairs of the house separately and as the kitchen provided for her use was in a tin shed and unconsented.
The landlord disputes this and claims that this was a consented house and that the tenant was in a flat sharing arrangement and able to access the whole house including the upstairs kitchen. The landlord further claims that as her ex- husband lived upstairs initially that this tenancy was an excluded tenancy.
The Tribunal has determined in the previous paragraphs that this was a tenancy arrangement for the downstairs of the premises and that it is not an excluded tenancy. Therefore, the Tribunal must consider whether there was lawful council consent for the downstairs to be rented out separately from upstairs.

Was the downstairs dwelling consented to be a separate dwelling from the upstairs?

Section 115(1) of the Building Act 2004 provides that “An owner of a building must not change the use of the building- (a) In a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority is satisfied on reasonable grounds, that the building, in its new use, will comply as nearly as is reasonably practicable, with the building code in all respects”
There is no dispute that the premises are consented as one house. The landlord has provided council records confirming this. It is noted that there is no consent for a separate dwelling downstairs or for a kitchen downstairs. It is clear from the photographs that the kitchen in the shed would not have been granted consent.
The premises did not have consent to be two separate dwellings, therefore, it was unlawful to rent out the downstairs as a separate dwelling. Furthermore, the kitchen in the shed was unconsented. Has the landlord’s failure to comply with their obligations under section 36 or 45(1)(c) contributed to the unlawful occupation?
A landlord must take all reasonable steps to ensure that there is no legal impediment to the occupation of the premises for residential purposes and must ensure that they comply with all requirements in respect of buildings, health and safety as they apply to the premises. See sections 36 and 45(1)(c) RTA.
In this case the current landlord took over management of the premises whilst overseas, however, the responsibility to be aware of the law regarding rental properties remains.
It is clear that the kitchen in the shed was unconsented and although this was in existence before the current landlord took over the premises, her property manager did work on the shed installing shelves and no attempt was made to ensure that building and safety requirements were met.
Further there was no council consent for the premises to be rented as two separate dwellings although they were being used in this way.
I find that the landlord did not take all reasonable steps to comply with their obligations and this contributed to the unlawful occupation. Conclusion
Having considered the above questions I find that the downstairs premises rented to the tenant were not lawful residential premises as they did not have consent to be a separate dwelling.
I find that the landlord did not take all reasonable steps to ensure that, at the commencement of the tenancy, there was no legal impediment to the occupation of the premises for residential purposes as a separate dwelling and that the landlord did not comply with all requirements in respect of buildings.
Therefore the Tribunal declares that the downstairs premises rented to this tenant were unlawful residential premises pursuant to section 78A(2) of the RTA.

Should the Tribunal order a rent reduction?

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. See sections 78A (4) RTA.
In considering the special circumstances of the case the Tribunal has considered the following factors in this case: The condition of the premises
The tenant claimed that the premises are in poor condition. The tenant produced photographs of extensive mould in the downstairs unit and a Healthy Homes Report that stated the premises did not have working smoke alarms.
The landlord claimed that the premises were maintained and she was proactive in responding when the tenant raised maintenance issues. She provided receipts of maintenance work done at the premises during the tenancy. The landlord claimed that the mould was caused by the tenants failing to ventilate the premises and produced a Healthy Homes Report which stated that the smoke alarms were compliant. However, the report stated that the heating and draught stopping standards were not compliant. The seriousness of the breach
It is serious to rent premises without ensuring that they are lawful. There are safety risks in dividing premises in to two dwellings without the appropriate council consent.
In this case it is acknowledged that the landlord’s ex-husband set up this tenancy and the current landlord was not involved in the setting up of this tenancy, however, this does not change the unlawful nature of the premises. The benefits the parties received
The landlord received the benefit of renting the premises as two dwellings. No rent summary was produced and the landlord advised that the tenant missed some rent at the end of the tenancy. However, even based on the reduced rent of $340 per week the landlord received more than $75,000 for this tenancy in addition to any rent received for the upstairs rental also.
The tenant received the benefit of an affordable place for her and her family to live for over four years. The parties agreed that the rent was reduced to $340 per week. Public Interest
Section 78A was introduced for the protection of tenants from being provided with unlawful housing. There is a public interest in deterring landlords from unfairly profiting from unlawful premises. Other issues
The tenant claimed that the landlord failed to lodge the bond. This is agreed as the landlord claimed that she did not receive the bond from her ex-husband until almost the end of the tenancy.
The tenant claimed that the landlord did not appoint an agent whilst out of New Zealand, however, the landlord produced copies of communication to the tenant advising that [The landlord’s agent] would be her agent. I am satisfied that the tenant was aware of this.
The tenant claimed that the landlord issued a retaliatory notice to end the tenancy, however, there was insufficient evidence of this as no formal notice to terminate was issued and the communication at the end of the tenancy was unclear.
The tenant claimed that the premises did not have working smoke alarms. The landlord claimed that the premises were provided with working smoke alarms, but the tenant did not replace the batteries.
The tenant claimed that the landlord or her agent unlawfully entered the premises on 9 July 2022, 2 December 2022 and 20 December 2022 and breached their quiet enjoyment of the premises. There was conflicting evidence from the parties regarding these incidents. There was a dispute between the parties on 20 December 2022 regarding a security camera installed by the tenant on the outside of the premises which was removed by the landlord. The landlord disputed any breaches and stated that the entry on 8 July 2022 was by a friend of the landlord who was passing by and entered without authority from the landlord, the entry on 2 December 2022 was with the consent of the tenant’s child to investigate a leak and there was no entry on 20 December 2022.
The landlord claimed that the tenant did not have consent to use the two garages. The tenant requested temporary use of a garage in January 2021 but continued to use the garage and yard for a car repair business without consent. The tenant claimed that the use of the downstairs included the garages.
The landlord claimed that the tenant’s dog caused damage to the carpet, flooring and the exterior wooden deck and railing at the property. The tenant disputed the interior damage. The tenant agreed that there was outdoor damage but claimed that this was repaired at the end of the tenancy.
The landlord has made claims against the tenant for compensation for use of the garage without consent, for removal of rubbish, for damage to the premises by the tenant’s dog. I have heard the disputed evidence in relation to these matters, however, as I have found that the premises are unlawful I must not make any order for compensation to the landlord.
I have considered these matters in the special circumstances of this case and I am going to deal with the application by making an order for one lump sum rent reimbursement award. I consider that more than fairly compensates the tenant irrespective of the outcome of the other breaches claimed in order to ensure a fair and expeditious resolution of all disputes. See section 85 RTA.
Having considered all the above matters I find special circumstances to award less that a full rent refund. I order the landlord to pay a lump sum rent refund of $23,600.00 to the tenant which equates to $100 per week for the 236 weeks of the tenancy from 7 July 2018 to 15 January 2023.
The bond belongs to the tenant unless the landlord proves a claim against the bond. As the premises have been declared unlawful no compensation will be ordered to the landlord. Accordingly, the bond of $1520.00 held by the landlord must be refunded to the tenant. Filing fee/Suppression
Because the tenant has substantially succeeded in her claim, the Tribunal orders the landlord to reimburse the tenant for the filing fee.
The Tribunal may on the application of any party or on its own initiative make a suppression order, having regard to the interests of the parties and to the public interest. Section 95A (4) Residential Tenancies Act 1986. Both parties have sought suppression in this matter. Having considered the factors in this case the Tribunal grants suppression as sought.

Tenancy Tribunal case 4474680 — Tenancy dispute

Tenancy Tribunal case 4474680 — Tenancy dispute

Order

Reasons

Tenancies Act 1986?

Are the parties in a landlord/tenant relationship for a residential tenancy?

Are these premises unlawful residential premises?

Was the downstairs dwelling consented to be a separate dwelling from the upstairs?

Should the Tribunal order a rent reduction?

Order

Reasons

Tenancies Act 1986?

Are the parties in a landlord/tenant relationship for a residential tenancy?

Are these premises unlawful residential premises?

Was the downstairs dwelling consented to be a separate dwelling from the upstairs?

Should the Tribunal order a rent reduction?