Published tribunal order
Tenancy Tribunal case 4569792 — Tenancy dispute
Decided 9 Oct 2023 · Published 9 Oct 2023 · Application 4569792
- Exemplary damages
- Harassment
- Healthy homes
- Leaks
- Mould & damp
- 14-day notice
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
- Kiran Maharaj and Baij Maharaj must pay [The tenant/s] $1,140.44 immediately, calculated as shown in table below.
- The Landlord is to pay the bond of $680.00 to [The tenant/s] immediately.
Reasons
- Both parties attended the hearing.
- The Tenant is [redacted]. He moved to New Zealand from [redacted] and approached the Landlord seeking a place to stay. The Landlord did not require a Tenant but helped him out by offering him a self-contained room in the downstairs part of their house. This was a five-bedroom property where the Landlord lived upstairs. There was a board used as a divider preventing access to the upstairs part of the house. [The tenant/s] had his own separate access to his property downstairs and a key to lock his room.
- The Tenancy started on 29 May 2023 and ended on 11 December 2023. [The tenant/s] paid $340.00 per week for rent which included electricity, gas and water.
- The Tenant has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Compensation for unlawful premises
- The Tenant claimed this was an unlawful property because it was not consented to be used as a rental property. The Tenant claimed there were constant leaks from the poly-carbonated roof which was the roof of his makeshift kitchen. There was no proper window and a pungent smell existed because the carpet was constantly wet from the roof leaks. It was cold and damp in the winter. The room opened up to what appeared to be previously a sunroom. In that sunroom there was a kitchen for the Tenant to use. The Tenant complained to the Landlord regarding the leaks and smell but nothing was ever attended to.
- On 24 November 2022, the Tenant arranged for a Building Council inspector, [Building inspector] to attend the property. [Building inspector] attended the hearing and gave evidence that the property was unlawful. He issued a ‘Notice to fix’ on 16 December 2022 and the property issues were rectified by the Landlords in July 2023.
- The Landlord accepted that the property was unlawful but submitted they were not aware of this at the time they rented the property to the Tenant. They had another property downstairs that was legally consented to as a rental property so they believed this property was as well. The Landlord subsequently rectified the issues after they received the ‘Notice to fix’. They did not intend to be non- compliant but were just wanting to help [The tenant/s] out by offering him this property. Before this, they never needed a Tenant. When [The tenant/s] complained about the leaks and wet carpet, they offered to provide a dehumidifier which [The tenant/s] did not accept.
- I consider that the landlord has not complied with the Building Act, and consequently has failed to comply with section 45(1)(c) of the Act. The failure to obtain consent makes occupation of it unlawful.
- 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) RTA.
- In considering whether there have been special circumstances in this case, I note the Tenant has had some benefit from living at the property. I must therefore assess the amount of rent to deduct. Other Tribunal decisions have considered the following factors when determining the amount to deduct: 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 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 Landlord rented the property out to the Tenant because the Tenant had approached them looking for somewhere to stay. The Landlord was not looking for a Tenant or Boarder but decided to help the Tenant out and gave the Tenant use of the downstairs property. The Tenant lived at the property for over six months. The Tenant submitted that the Landlord was rude, swore at him and threatened to physically hurt the Tenant during the tenancy. The Tenant also submitted that the Landlord would enter the property without any consent and stole from him.
- The Landlord benefitted from having extra income of $340.00 per week from renting the property out.
- The Tenant benefitted from having a home for himself however there were limitations in that the roof leaked, the floor was damp and there was no proper ventilation. They lived at the property for just over six months.
- The Landlord rectified the issues which made this property unlawful within six months as soon as they were provided with the notice.
- The Tenant was unable to bring guests to his property because the dampness and smell was unpleasant.
- There is a strong public interest that premises like these are not rented out.
- In considering the evidence, the Tenant has provided evidence that he reported to the Police his possessions were stolen but there was no third-party evidence that it was the Landlord that stole it. The Tenant also made his complaints as he was about to vacate which indicates the repairs to the property may not have been as serious as he claims otherwise he would’ve complained earlier. If there were issues, he could have issued 14 day to remedy notice sooner. The Tenant had the benefit of the property for the entire period until he moved out. For these reasons, I find that whilst this was an unlawful property, the appropriate amount to award is a refund of $40.00 per week in rent over the 28 week period of the tenancy. Claim for stolen passport, money and food
- The Tenant claimed $390.00 to replace his stolen passport, $1500 cash and canned food valued at $150.00 that went missing from his property during the tenancy. He submitted the Landlords were the only people that had access to his room where he stored the passport. He made a report to the police regarding his stolen goods.
- The Landlord submitted there was no reason for them to steal the passport. They did have a key for the room but they never took his passport, food or cash. The Tenant had a friend that would attend the property to drink kava with the Tenant so they could have taken it.
- In considering the evidence, I find that while the Landlord may have had access to the property that does not prove they stole money or food. It could have been a third party breaking into the property. The Tenant may want to consider making claims for this theft through a different jurisdiction.
- The case is dismissed. Claim for exemplary damages
- The Tenant claimed for exemplary damages because he suffered from the state of the property and the Landlord threatening him. He submitted the poor conditions caused him distress and on 11 December 2023, the Landlord sent someone to threaten him to ensure he moved out on that day. There was no third party evidence to verify this happened or medical evidence to prove he suffered from stress.
- As stress and threats are not unlawful acts for which you can claim exemplary damages, the claim is dismissed.
- As [The tenant/s] has substantially succeeded with the claim the Landlord must reimburse the filing fee and name suppression is granted to the Tenant.