What was Tenancy Tribunal case 4491241 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 4491241?

Compensation: Failure to provide vac…: $2,600.00 awarded to tenant; Compensation: Wrongly Charged Power: $2,000.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Rent Arrears: $9,742.86 awarded to landlord

What type of tenancy dispute was case 4491241?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4491241?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9478956-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4491241 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 4491241?

Compensation: Failure to provide vac…: $2,600.00 awarded to tenant; Compensation: Wrongly Charged Power: $2,000.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Rent Arrears: $9,742.86 awarded to landlord

What type of tenancy dispute was case 4491241?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4491241?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9478956-Tribunal_Order_Redacted.pdf.

42 Bahari Drive, Ranui, Auckland 0612 Tenancy Tribunal Case 4491241 — Rent arrears

Claims and awards in Tenancy Tribunal application 4491241 — net $3,292.86 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$9,742.86		Rent arrears
Compensation: Wrongly charged power		$2,000.00	Wrongly charged power
Compensation: Failure to provide vacant possession		$2,600.00	Failure to provide vacant possession
Exemplary damages: Unlawful entry		$200.00	Unlawful entry
Total award	$9,742.86	$4,800.00
Net award	$3,292.86
Total payable by Tenant to Landlord	$3,292.86

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
The Bond Centre is to pay the bond of $1,650.00 ([Bond number suppressed]) to [The landlord/s] immediately
[The tenant/s] must pay [The property manager/s] as agent for [The landlord/s] $3,292.86 immediately, calculated as shown in the table below: Rea sons:
Both parties attended the hearing. The tenant represented herself and [The landlord’s representative] represented the landlord.
This matter had previously been considered in February 2023. The landlord’s original claims were for termination of the tenancy and rent arrears. The
After the last hearing, the tenant has moved out of the premises. Therefore, the landlord’s application to terminate is moot.
In February, I adjourned the matter for consideration of whether or not the premises were unlawful residential premises.
At that time, I directed the landlord to provide evidence that the garage (where the owner was residing) had been lawfully converted to a residential dwelling. I also encouraged the tenant to make relevant inquiries with Auckland Council on this matter.
Neither party was able to advance this matter further today. Both parties thought that there was a question mark regarding the lawfulness of the garage conversion however neither party had any documentation to support their stance. In the absence of clear evidence, I am not able to be satisfied that the tenant’s claim for unlawful residential premises has been proven.
Accordingly, that claim must be dismissed.
That leaves the landlord’s application for rent arrears and the tenant’s remaining claims. Rent Arrears
The landlord provided a rent summary that shows that at the end of the tenancy rent arrears were owing in the amount of $9742.86.
The tenant accepted that amount was owing. She said that she effectively stopped paying rent as a protest because she was frustrated that the landlord did not take her legal obligations seriously and was not addressing the issues she had raised.
While I understand the tenant’s frustration, the tenant nevertheless had a legal obligation to continue to pay rent.
The amount ordered is proved. Power
A tenant is only responsible for outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities: see section 39(3) Residential Tenancies Act 1986 (“the Act”).
Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption (s 39(4) of the Act). They are not liable for fixed charges.
Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises (Green v McGregor [2015] NZTT Waitakere 1292). Even if the tenant’s electricity usage can be calculated, a strict application of s 39(3) RTA means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises.
In this case, the owner was living in a converted garage on the premises.
There was no dispute that that the owner used electricity which was being paid for by the tenant.
The tenant provided a summary of her power invoices (up to March 2023) which showed that the amount she had been invoiced by [power company] was $2,775.35.
Having said that, the tenant said that eventually the owner did make some contribution toward power in the region of $30-$50 per month. That amounts to around $360.00-$600.00.
Regardless of the owner’s eventual contribution, this was not a cost which the tenant was liable to bear. Rather, in the absence of any way to measure usage, the tenant was not liable for electricity because this was not exclusively attributable to her occupation of the premises.
Taking into account that some contribution has been paid already, I order the landlord to pay the tenant $2000.00 for power bills that she ought not to have paid. Failure to Provide Vacant Possession
A tenant is entitled to vacant possession of a premises under the tenancy agreement. This is an essential term of the tenancy agreement which, if not given, is serious enough to justify termination of the tenancy. Vacant possession includes being free from the landlord’s goods if it is not a furnished tenancy. 1
This was not a furnished tenancy. 1 See for example Kiwi Global Education Ltd v Seo (DC Christchurch CIV-2009-009-1973)
There was no dispute that when the tenant moved into the premises, the owner was using the downstairs part of the premises to store her belongings. That continued for the duration of the tenancy.
Not only was this a breach of the tenant’s right to vacant possession, it also led to tenant feeling insecure because the downstairs area was not able to be locked (she had been told by the owner not to lock it) and the owner (or the owner’s partner) accessed the area without notice. She also felt as though this impinged on her privacy.
At the hearing in February, I directed the owner to remove her belongings from this area.
Following the hearing, the tenant said that she left the area unlocked for two weeks to allow this to happen, but the owner did not remove all her belongings during this time.
After this, the tenant locked the area for security

Reasons

I consider that the tenant should be compensated in the amount of $50 per week for the duration of the tenancy, which was one year.
I therefore order the landlord to pay $2600.00 in compensation for failing to provide vacant possession of the premises. Unlawful Entry by Landlord
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice. See section 48(1) and (2) of the Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48(4)(a) and Schedule 1A of the 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.
The issue of unlawful entry is directly related to the above issue. As a consequence of the landlord using part of the premises for storage, the tenant said that the landlord (or her partner) turned up at any time to get things out of the storage area.
The tenant felt this impinged on her privacy. She was also concerned because she had a new-born baby and she found this to be disruptive.
I have sighted text exchanges between the tenant and the landlord, as well as the tenant and the property manager. The tenant consistently objected to this occurring.
Once [The landlord’s representative] (the last property manager) took over, I am satisfied that the landlord ceased unlawfully entering the premises.
However, I find that prior to that there were at least two instances when the landlord entered the premises without consent and without the required notice.
I find that the landlord has committed an unlawful act.
In this case, for the reasons outlined above, I am satisfied that the landlord has committed a number of unlawful acts.
In this case, I have determined that the established breach was intentional, that there has been a detrimental impact on the tenant, and there is a public interest in deterring landlords from breaches of this nature.
I consider it would be just to make an order.
However, given that the unlawful entries were in the storage area rather than the main areas of the house, and in the absence of any information suggesting this is a recidivist landlord, I intent to keep the award at the lower end of the scale Suppression and Filing Fee
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
In this case, both parties requested suppression and both parties have had partial success in the proceedings. As there are no countervailing reasons not to do so, I therefore grant suppression of both parties’ names and identifying details.
Because both parties have had some success, I decline to reimburse the filing fee; costs will lie where they fall. J R Smith 02 October 2023

Claims and awards in Tenancy Tribunal application 4491241 — net $3,292.86 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$9,742.86		Rent arrears
Compensation: Wrongly charged power		$2,000.00	Wrongly charged power
Compensation: Failure to provide vacant possession		$2,600.00	Failure to provide vacant possession
Exemplary damages: Unlawful entry		$200.00	Unlawful entry
Total award	$9,742.86	$4,800.00
Net award	$3,292.86
Total payable by Tenant to Landlord	$3,292.86

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
The Bond Centre is to pay the bond of $1,650.00 ([Bond number suppressed]) to [The landlord/s] immediately
[The tenant/s] must pay [The property manager/s] as agent for [The landlord/s] $3,292.86 immediately, calculated as shown in the table below: Rea sons:
Both parties attended the hearing. The tenant represented herself and [The landlord’s representative] represented the landlord.
This matter had previously been considered in February 2023. The landlord’s original claims were for termination of the tenancy and rent arrears. The
After the last hearing, the tenant has moved out of the premises. Therefore, the landlord’s application to terminate is moot.
In February, I adjourned the matter for consideration of whether or not the premises were unlawful residential premises.
At that time, I directed the landlord to provide evidence that the garage (where the owner was residing) had been lawfully converted to a residential dwelling. I also encouraged the tenant to make relevant inquiries with Auckland Council on this matter.
Neither party was able to advance this matter further today. Both parties thought that there was a question mark regarding the lawfulness of the garage conversion however neither party had any documentation to support their stance. In the absence of clear evidence, I am not able to be satisfied that the tenant’s claim for unlawful residential premises has been proven.
Accordingly, that claim must be dismissed.
That leaves the landlord’s application for rent arrears and the tenant’s remaining claims. Rent Arrears
The landlord provided a rent summary that shows that at the end of the tenancy rent arrears were owing in the amount of $9742.86.
The tenant accepted that amount was owing. She said that she effectively stopped paying rent as a protest because she was frustrated that the landlord did not take her legal obligations seriously and was not addressing the issues she had raised.
While I understand the tenant’s frustration, the tenant nevertheless had a legal obligation to continue to pay rent.
The amount ordered is proved. Power
A tenant is only responsible for outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities: see section 39(3) Residential Tenancies Act 1986 (“the Act”).
Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption (s 39(4) of the Act). They are not liable for fixed charges.
Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises (Green v McGregor [2015] NZTT Waitakere 1292). Even if the tenant’s electricity usage can be calculated, a strict application of s 39(3) RTA means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises.
In this case, the owner was living in a converted garage on the premises.
There was no dispute that that the owner used electricity which was being paid for by the tenant.
The tenant provided a summary of her power invoices (up to March 2023) which showed that the amount she had been invoiced by [power company] was $2,775.35.
Having said that, the tenant said that eventually the owner did make some contribution toward power in the region of $30-$50 per month. That amounts to around $360.00-$600.00.
Regardless of the owner’s eventual contribution, this was not a cost which the tenant was liable to bear. Rather, in the absence of any way to measure usage, the tenant was not liable for electricity because this was not exclusively attributable to her occupation of the premises.
Taking into account that some contribution has been paid already, I order the landlord to pay the tenant $2000.00 for power bills that she ought not to have paid. Failure to Provide Vacant Possession
A tenant is entitled to vacant possession of a premises under the tenancy agreement. This is an essential term of the tenancy agreement which, if not given, is serious enough to justify termination of the tenancy. Vacant possession includes being free from the landlord’s goods if it is not a furnished tenancy. 1
This was not a furnished tenancy. 1 See for example Kiwi Global Education Ltd v Seo (DC Christchurch CIV-2009-009-1973)
There was no dispute that when the tenant moved into the premises, the owner was using the downstairs part of the premises to store her belongings. That continued for the duration of the tenancy.
Not only was this a breach of the tenant’s right to vacant possession, it also led to tenant feeling insecure because the downstairs area was not able to be locked (she had been told by the owner not to lock it) and the owner (or the owner’s partner) accessed the area without notice. She also felt as though this impinged on her privacy.
At the hearing in February, I directed the owner to remove her belongings from this area.
Following the hearing, the tenant said that she left the area unlocked for two weeks to allow this to happen, but the owner did not remove all her belongings during this time.
After this, the tenant locked the area for security

Reasons

I consider that the tenant should be compensated in the amount of $50 per week for the duration of the tenancy, which was one year.
I therefore order the landlord to pay $2600.00 in compensation for failing to provide vacant possession of the premises. Unlawful Entry by Landlord
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice. See section 48(1) and (2) of the Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48(4)(a) and Schedule 1A of the 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.
The issue of unlawful entry is directly related to the above issue. As a consequence of the landlord using part of the premises for storage, the tenant said that the landlord (or her partner) turned up at any time to get things out of the storage area.
The tenant felt this impinged on her privacy. She was also concerned because she had a new-born baby and she found this to be disruptive.
I have sighted text exchanges between the tenant and the landlord, as well as the tenant and the property manager. The tenant consistently objected to this occurring.
Once [The landlord’s representative] (the last property manager) took over, I am satisfied that the landlord ceased unlawfully entering the premises.
However, I find that prior to that there were at least two instances when the landlord entered the premises without consent and without the required notice.
I find that the landlord has committed an unlawful act.
In this case, for the reasons outlined above, I am satisfied that the landlord has committed a number of unlawful acts.
In this case, I have determined that the established breach was intentional, that there has been a detrimental impact on the tenant, and there is a public interest in deterring landlords from breaches of this nature.
I consider it would be just to make an order.
However, given that the unlawful entries were in the storage area rather than the main areas of the house, and in the absence of any information suggesting this is a recidivist landlord, I intent to keep the award at the lower end of the scale Suppression and Filing Fee
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
In this case, both parties requested suppression and both parties have had partial success in the proceedings. As there are no countervailing reasons not to do so, I therefore grant suppression of both parties’ names and identifying details.
Because both parties have had some success, I decline to reimburse the filing fee; costs will lie where they fall. J R Smith 02 October 2023

Tenancy Tribunal case 4491241 — Rent arrears at 42 Bahari Drive, Ranui, Auckland 0612

At a glance

Tenancy Tribunal case 4491241 — Rent arrears at 42 Bahari Drive, Ranui, Auckland 0612

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions