What was Tenancy Tribunal case 4579556 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 4579556?

Property Damage: $800.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4579556?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4579556?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10013105-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4579556 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 4579556?

Property Damage: $800.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4579556?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4579556?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10013105-Tribunal_Order_Redacted.pdf.

25 Castles Road, Oropi, RD 3, Oropi 3173 Tenancy Tribunal Case 4579556 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4579556 — net $1,320.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge the bond	$800.00	Failure to lodge the bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Exemplary damages: unlawful entry	$500.00	unlawful entry
Net award	$1,320.44
Total payable by Landlord to Tenant	$1,320.44

Claims and awards in Tenancy Tribunal application 4579556 — net $1,320.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge the bond	$800.00	Failure to lodge the bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Exemplary damages: unlawful entry	$500.00	unlawful entry
Net award	$1,320.44
Total payable by Landlord to Tenant	$1,320.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Michael Rhodes must pay [The tenant/s] $1,320.44 immediately.
All other claims are dismissed.

Reasons

This an amended order correcting typographical errors’ .The body of the decision, reasoning and the total amount ordered remains unchanged from the order issued on 22 February 2024.
Both parties attended the hearing and were represented by legal counsel. [The tenant/s] was represented by [The tenant’s representative] and brought a support person. Mr Rhodes was represented by Ms Sheely.
The applicant claimed that the premises were unlawful and sought compensation by way of a total rent refund. Exemplary damages for further breaches were sought.
This is a current tenancy which began in 2012.The premises are a converted basement, and the landlord lives upstairs.
The basement was made into a self-contained unit in in 2007 when a kitchen was added, and an internal stairway removed. There was already a bathroom in the basement.
The conversion was approved, resource consent granted and building consent issued by Western Bay of Plenty District Council, WBOPDC.
When the building project was finalised, no final inspection was carried out and no code of compliance certificate (CCC) was issued.
The applicant claimed that because the premises did not have a code of compliance issued there was a breach of section 45(1)( c) of the RTA resulting in an unlawful act and the premises being unlawful. See section 78A RTA. Unlawful premises.
The Tribunal may determine premises to be an unlawful residential premises. See section 77(2)(ac) RTA. 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.
Section 78A(2) of the RTA states; “for the purposes of this act, unlawful residential premises means residential premises that are used for the occupation of a person as a place for residence but – (a) That cannot be lawfully occupied for residential purposes by the person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligation under section of 36 or 45(1)(c)...., has caused the occupation by that person to be unlawful or has contributed to their unlawful occupation.
The Tribunal under section 78A(4)(a)(i) can make an order that the landlord pays the tenant a refund of the whole sum of rent if it is satisfied that the premises are or were unlawful residential premises.
Section 45(1)(c) RTA provides that a landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Section 36 of the RTA states 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.
The public policy behind the introduction of section 78A was to discourage landlords from renting out properties that were, for example, unconsented or unlawful and had therefore have never been required to meet legal requirements to ensure their safe and healthy occupation by tenants.
For the tenant to succeed in this claim the Tribunal must find that the property cannot lawfully be occupied for residential purposes. This first step involves making a finding that the whole property has some sort of regulatory failure which means it cannot be occupied as a residential dwelling.
This question has been considered by the Tribunal in a decision in 2022, application 4209883,432059020 (the details of the parties and the address were suppressed).
The Adjudicator in this decision found that for the purposes of section 78A of the RTA the decisions of the Tribunal in determining what was held to be unlawful fell into 3 broad categories. • Unconsented, no building or resource consents issued for the premises at all. • When an abatement notices or dangerous and insanitary building notice was issued or • Cases where garages, basement conversions or parts of premises being used as a larger household unit, have been converted as a separate household unit without Council consent to the change of use.
In March 2007, Western Bay of Plenty District Council, WBOPDC requested a fire protection report and plan to confirm the code of compliance for the original conversion. Further correspondence in July 2009 informed the respondent that the building consent would expire if a CCC was not obtained.
On 9 February 2022, a WBOPDC property inspection confirmed that the ceiling of the premises did not comply with the current fire safety ratings and a code of compliance could not be issued.
On 7 November 2023 this work was completed inspected and passed. The application for a CCC is currently at the WBOPDC awaiting issue.
There was no dispute that the premises had not received the code of compliance.
[The tenant’s representative] put forward the argument that this failure was enough to render the premises unlawful and section 78A applies. It was also claimed that having no code of compliance was a breach of section 45(1)(c ) because this was a failure to comply with all the requirements in respect of the buildings.
[The tenant’s representative] claimed that these breaches resulted in the premises not being able to be lawfully occupied and therefore unlawful.

Are the premises unlawful because they do not have a code of compliance?

The timeline of events is important as the law in relation to the issuing of a code of compliance has been amended since the initial conversion of the current tenancy in 2007.
The Building Act 2004 was amended with effect from 1 January 2015 bringing about sweeping consumer protection changes, one being that it now requires commercial on-sellers having to obtain CCC before selling or granting possession.
It is important to note that the current tenancy began in 2012 prior to these changes taking place so at the time the tenancy began there was no requirement for a code of compliance to be issued before possession could be granted.
Mr King was produced as an expert witness for the respondent and is a registered engineer with 40 years’ experience in civil, geotechnical, structural ,fire, industrial and domestic engineering. Mr King spoke of the process from building consent to the issuing of a CCC, saying that it is a regulatory procedure that is started by the issuing of a building consent and ends when the CCC is issued.
He stated that a lack of a CCC does not mean that a premises is unlawful and that there are many properties without CCC. His view was that the issuing of the code of compliance signals the end of the council’s responsibility for overseeing the building process.
Mr King said that the law in relation to building standards and compliance has changed recently and become stricter, now possession is unable to be granted without a CCC but when the tenancy began this was not a requirement.
He knew the premises and said at the time the premises were converted to a separate unit, they would still have provided a 30-minute fire rating, but this initial work would not be enough to certify it today.
[The tenant’s representative] said that the owner had a requirement to apply for a CCC at the end of the works and the failure to do so results in it not complying with the Building Act.
I find that it has not been established that the premises are or were unlawful. At the time the tenancy started the premises were not in breach of the Building Act. The Building Act does not operate retrospectively and therefore this property is not subject to the updated requirements. No regulatory failure was established.
The applicant did not provide any other examples of lack of consents, abatement notices or breaches of related Acts that support the claim that the premises cannot be lawfully occupied.
The lack of a CCC when this tenancy began does not mean it cannot be occupied as a residential dwelling.
This claim is dismissed. Failure to comply with section 45.
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must comply with any relevant enactment in relation to buildings, health and safety.
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 did not obtain the CCC for the building after it was converted to a separate premises. No evidence was provided that failure to do this when the tenancy began in 2012 amounted to a breach of any relevant enactment in relation to buildings, health and safety that applied at the time.
This claim is dismissed. Unlawful entry
[The tenant/s] claims the landlord has entered the premises without consent or notice.
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 for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
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 Residential Tenancies Act 1986.
It was not disputed that the landlord entered into the premises on two occasions, once to measure the furniture and a second time with furniture removal employees.
The tenant claimed that the landlord had entered many other times but was unable to provide evidence that this occurred or that her consent was not freely given at the time.
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.
Counsel said that it was the landlord’s intent was to be helpful and measure the furniture for removal. The tenant said that she was aware of the landlord being there because she suspected he had been inside the premises when she was out and had installed a camera that alerted her when someone was there. This is a breach of the tenants’ privacy to which they are entitled, and the landlord should be aware of the responsibilities and the requirements of the RTA. It was accepted that there were two instances of unlawful entry and I find it just to award $500.00 for this breach. Breach of quiet enjoyment
[The tenant/s] claims the landlord has harassed them. [The tenant’s representative] upon reflection said that the evidence of the landlord’s action was more an annoyance and withdrew this claim. Bond
[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
Counsel said that the landlord did not know that he had to lodge the bond. The bond was paid on 25 June 2016 and was not paid into the bond centre until 25 October 2023.
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. The bond is not the landlord’s money, it is the tenants and is to be held by the bond centre as a surety for end of tenancy claims. The landlord has had the use of the tenant’s money since 2016. It is very important that landlords know and comply with the requirements of the RTA.I find it just to make an award of $800.00 for the breach of this section of the RTA. Healthy Homes Standards
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS draught stopping standard.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
The tenancy began on 25 June 2016 and no evidence was provided that the tenancy has been renewed. This standard does not apply to existing tenancies until 2025.
I find that this section does not apply to this tenancy and this claim is dismissed. Smoke alarms
The tenant installed her own smoke alarm at the start of the tenancy. Her claim that the landlord failed to install smoke alarms is dismissed because the HHS did not apply at that date.
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The applicant sought suppression and was substantially successful. Name suppression is awarded.
The filing fee is reimbursed to the applicant as they were substantially successful with their claims.

Tenancy Tribunal case 4579556 — Exemplary damages at 25 Castles Road, Oropi, RD 3, Oropi 3173

At a glance

Tenancy Tribunal case 4579556 — Exemplary damages at 25 Castles Road, Oropi, RD 3, Oropi 3173

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Are the premises unlawful because they do not have a code of compliance?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Are the premises unlawful because they do not have a code of compliance?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions