What was Tenancy Tribunal case 4555869 about?

The tribunal order states: The property is declared an unlawful residential premise.

How much money was awarded in case 4555869?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4555869?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4555869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9445096-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4555869 about?

The tribunal order states: The property is declared an unlawful residential premise.

How much money was awarded in case 4555869?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4555869?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4555869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9445096-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4555869 — Healthy homes

Order

The property is declared an unlawful residential premise.
The landlord must pay the tenant $ 2,520.44 (a full rent refund of $2,500.00 and reimbursement of the $20.44 filing fee) immediately.

Reasons

Both parties have appeared.
The tenant filed their claim with the Tribunal on 21 April 2023. On 25 July 2023, there was a telephone Case Management Conference, the purpose of which was to confirm the claims, and make any directions necessary. Both parties appeared at the Conference.
It was noted that in the application the tenant referred to possible claims concerning breaches of the Healthy Homes Standards. Exactly what the breaches related to was not clear. At the Case Management Conference, I directed that if the tenant wished to bring additional claims beyond that the property was an unlawful residential premises, they provide details of those claims, and in addition to a rent refund, details of any other compensation sought within 10 working days. If not, the application would proceed on the claim as confirmed.
No other material has been produced.
The tenant’s claim is that the property was an unlawful residential premise, see section 78A of the Residential Tenancies Act 1986 (The “Act”), for which the tenant is seeking a full refund of the rent paid, which confirmed by the parties is $2,500.00.
In this case the tenancy was for a fixed term commencing 06 March 2023. The parties agreed to bring the tenancy to an end, and the tenant vacated the property on 20 April 2023. The bond of $1,050.00 has been released to the tenant.
Section 78A (2) of the Act defines “Unlawful residential premises” as: Residential premises that are used for occupation for a person as a place of residence but – (a) That cannot be lawfully occupied for residential purposes by that person (whether generally or whether for the particular residential purposes which that person is granted occupation), and (b) Where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c) has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 36 of the Act provides that the landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
Section 45(1)(c) of the Act provides that the landlord must comply with all requirements in respect of buildings, health, and safety under any enactment as far as they apply to the premises.
Section 45(1)(c) requires consideration of whether the landlord has complied with the provisions of the Building Act 2004. Section 115 of the Building Act requires the Council to be notified, and, if satisfied issue a written notice that any addition or alteration to the property, changing its intended use, meets the building code.
The property concerned has been moved onto the section by a previous owner. The Council property file clearly shows that consent was issued on the basis that the kitchen, including the stove, was to be removed, and that the intended use of the property was as a sleep out only. The Council property file does not record any subsequent consented change of use.
The landlord states they work in the property sector and purchased the property from a well-known developer, that it was tenanted at the material time, and on that basis, they assumed that it was compliant. The tenant suggests that it may have been the previous tenant who reported the matter to Council. Before purchasing the property, the landlord did not obtain the Council property file or a Land Information Memorandum (LIM). Had the landlord at least viewed the Council property file it would have been clear that the property occupied by the tenant was unable to be offered for residential rental purposes. Post the purchase of the property, a properly conducted Healthy Homes Standards assessment would have also identified the defect.
After hearing from the landlord and considering the matter, I am not satisfied the landlord has taken 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.
I am satisfied that at the material time the property was an unlawful residential premise as defined in section 78A (2) of the Act.
Section 78A (4) of the Act gives the Tenancy Tribunal power to make a range of orders if the evidence establishes that the premises are, or were at any material time, unlawful residential premises, that the Tribunal may order the landlord to pay the tenant – (i)The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful premises; or (ii)An amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.
In the case of Tenant v Presland and Co Trustee Company [2021] NZTT 4290197, the Tribunal analysed other Tribunal decisions dealing with “special circumstances” under section 78A(4)(ii) and identified the relevant factors below: 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 time he 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. j. Any other compensation or exemplary damages that are ordered
The tenancy lasted for a short period. The tenant states that when they were advised by the Council that there were issues with the property, they obtained the Council file and discovered that the property was not consented for residential tenancy purposes. The tenant states that the primary reason for seeking to end the tenancy was health and safety, a secondary reason being that they were struggling to pay the rent without recourse to public funds, which they were reluctant to claim. The tenant states that they had taken the landlord’s word that there were no issues with the property and were shocked to subsequently be advised by Council that the waste from the kitchen sink discharged onto the ground directly outside.
The tenant states that there had previously been an issue with flies and maggots but, unsuspecting that the lack of proper drainage may have been a factor, had failed to identify the possible cause. The tenant expressed concerned that before discovering the issue, her young child would often run around the property through the affected area.
The tenant stated that the property had other Healthy Homes issues, but as stated, these claims have not been properly identified, nor is there evidence that they were previously raised with the landlord.
The tenant states that having advised the landlord of the issue, in their view the landlord appeared more interested in how the tenant was going to pay the rent. The parties came to a mutual agreement to end the tenancy. The landlord refunded the tenants bond in full. On the same day, the tenant lodged their claim.
The tenant states that they were forced to move into emergency accommodation and that the affair had caused financial and emotional stress and hardship. The tenant states while they have suffered other financial loss, they are unable to quantify it for the purpose of bringing a claim.
The landlord states that they were unaware, for the reasons set out at paragraph [12] above, that the property did not comply with the building code relevant to the property being offered for a residential tenancy. The landlord is employed in the property sector and states that there are many properties in the area where the owner is renting a sleep out or similar dwelling for residential purposes. Some of those properties may be code compliant, others may not. The landlords of those properties offered for residential tenancies without code compliance are running the risk of proceedings such as these. Ignorance of the applicable law cannot be an excuse, and it would be prudent that someone working in the sector, who is making representations to prospective purchasers, to have a good working knowledge of the relevant provisions.
The landlord states that the property is no longer being offered as a standalone rental property, and is being offered, as per its original consent, as a sleep out or bedroom to the adjacent property which they also own. Until the property concerned has been deemed safe and sanitary or has the required consent, and to avoid continuing liability, this is prudent.
The landlord stated that the Council had withdrawn a compliance fine levied against the landlord. I gave the landlord the opportunity to adjourn and produce evidence from the Council that may be relevant. The landlord has had the opportunity to consider the matter but declined the offer for an adjournment.
Concerning the tenants claim for a full rent refund, the landlord argues that it is not justified submitting that the breach was not that serious. I cannot accept that submission. While some regulatory breaches of the building code may be minor and not overly affect the tenant’s use of the property, I do not place this breach in that category. For obvious health and safety reasons, the appropriate disposal of wastewater from residential properties is clearly important, and in the public interest. I have no doubt that a failure to do so is a breach of the building code relevant to properties consented for residential purposes. It is also clearly in the public interest to discourage unlawful tenancies.
For these reasons, I am of the view that a full refund of the rent paid by the tenant is justified. As the tenant has been substantially successful, I also order reimbursement of the filing fee. Name suppression.
Both parties seek name suppression.
The tenant has been substantially successful and pursuant to section 95A of the Act is granted name suppression.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.
At the conclusion of the hearing, I gave the landlord the opportunity to provide evidence in support of their application for name suppression. The landlord has produced a letter from a senior member of their profession stating that in the circumstances, naming the landlord will have a detrimental effect on their livelihood. I accept this would cause the landlord financial and emotional stress. I also take into account that the landlord was conducting themselves in their personal capacity and not advising others. I am satisfied that there are grounds to depart from the general principle of open justice, and I grant the landlord’s application for name suppression.

Tenancy Tribunal case 4555869 — Healthy homes

At a glance

Tenancy Tribunal case 4555869 — Healthy homes

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions