What was the outcome of Tenancy Tribunal case 4587909?

The tribunal order states: The landlord’s application for suppression is declined.

How much money was awarded in case 4587909?

Expert Invoice: $764.17 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Refund - Unlawful Residential P…: $11,520.00 awarded to tenant

What type of tenancy dispute was case 4587909?

The dispute type was not classified.

Where can I read the official tribunal order for case 4587909?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9409649-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4587909?

The tribunal order states: The landlord’s application for suppression is declined.

How much money was awarded in case 4587909?

Expert Invoice: $764.17 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Refund - Unlawful Residential P…: $11,520.00 awarded to tenant

What type of tenancy dispute was case 4587909?

The dispute type was not classified.

Where can I read the official tribunal order for case 4587909?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9409649-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 151 Trafalgar Street, Onehunga, Auckland 1061 Tenancy Tribunal Case 4587909 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4587909 — net $12,304.61 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund - unlawful residential premises	$11,520.00	Rent refund - unlawful residential premises
Expert invoice	$764.17	Expert invoice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$12,304.61
Total payable by Landlord to Tenant	$12,304.61

Order

The landlord’s application for suppression is declined.
Street Smart Property Management Limited As Agent For Konda Anuragini.M & Ujwal Rao Jared Hoy Fong must pay Benjamin Bushell $12,304.61 immediately.

Reasons

Both parties attended the hearing.
Mr Bushell appeared as the tenant. Mr McGregor appeared as an expert for the tenant.
Mr Fong appeared for the landlord.
Mr Bushell confirmed he received the bond ($1,440) in full. There was no bond left in the Bond Centre.
The issue for me to determine is whether the flat rented by Mr Bushell is an unlawful residential premises. If a refund on rent is necessary, what is the appropriate amount to be refunded?
The tenancy commenced on 12 August 2022.
On 31 May 2023, Mr Bushell terminated his tenancy under section 56A of the Residential Tenancies Act 1986 (“RTA”). In the termination notice, Mr Bushell informed Mr Fong that the flat he rented did not have Council consent and was not fire-rated.
Mr Bushell vacated the premises immediately due to the flat was unconsented, and the premises posed a fire safety hazard to him.
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 and 45(1)(c) RTA. See section 78A(2) RTA.

Is the 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 premises Mr Bushell occupied was and still is part of the landlord's house. It is not in dispute that the landlord converted the rumpus into a flat known to the landlord as Flat 3, 151 Trafalgar Street, Onehunga, Auckland. This address is not a legal address known to Auckland City Council.
Mr Bushell called Mr McGregor as his expert witness. Mr McGregor is an expert in architectural design and a qualified mechanical engineer. He was a building inspector for Auckland City Council in the late 1990s. Mr McGregor is now 70 years old.
In the hearing, Mr McGregor walked me through his report from the first visit to the flat. He said, “...I was there, I noticed, number one, there was a door going into the garage. And then, on a closer look, it didn't appear to be up to standard. It was a gut feeling. Purely from experience.”
Because of his “gut feeling and his experience,” Mr McGregor got the property file from the Council and went through the entire file.
Mr McGregor said in evidence that “the flat” in issue is described as a rumpus room on the plan. Mr McGregor submitted that “... a rumpus room is not a habitable space, because the habitable space is ... a permanent living like sleeping room.” The rumpus room, therefore did not need a fire rating because “it was just a usable room downstairs”.
What drew Mr McGregor’s attention was that the landlord did a drawing and applied to the Council in 2021 to convert the whole bottom area into a flat.
But on 18 July 2022, the landlord cancelled the consent. The landlord did not give a reason for cancelling. Mr McGregor, however submitted that the landlord probably got the price for getting the bottom area a fire rating, and the price was too high and then made an economic decision not to proceed to the conversion of the downstairs area.
Mr McGregor submitted that the discovery of this cancellation was important because it showed the landlord was aware of his legal obligation.
Mr McGregor also found the flat had a kitchen sink with a built-in hot plate. Mr McGregor gave evidence that a kitchen sink with a built-in hot plate would not be lawful because the flat was not an approved living space with a fire rating.
In Mr McGregor’s report, he said: “The use of this area as a Self Contained Flat is illegal and a breach of the Building Act. It presents as not only illegal building works but also a Fire Hazard in terms of life and property safety for both occupants of the illegal flat and the building as a whole when let as a separate flat.”
Mr McGregor was critical of the landlord and said: “[You] put your tenant in jeopardy if there's a fire upstairs, but it is also put the tenant upstairs in jeopardy if there's a fire downstairs. That is why the fire ratings are there. It is tough and it is pain, but that is the reality of it. If there is a fire, who says that everyone is going to get out in one place and purely because work has not been done to separate the fire elements of it or the fire zones of it. If you have done it properly, you can have a fire in the bottom flat ... and it doesn't affect upstairs. They get half an hour's rating to get people out of the top flat. But if you have no fire rating, it can go through there like a dose of salt, like it did in the complex down in Wellington, where fire can start very quick, exceedingly quick.”
Mr McGregor further said that is “... why I am a little bit dogmatic about it when I find it, you know.”
In my view, Mr. McGregor's dogmatic approach is justified. Tenants are not mere cash cows for landlords; they have the right to live in their homes with peace of mind.
Mr Fong did not mount a defence after hearing Mr McGregor’s evidence. In my view, Mr Fong accepted the flat was unlawful residential premises.
Accordingly, I find the flat is unlawful residential premises. Compensation
Section 36 of the RTA says the landlord shall take all reasonable steps to ensure that, at the tenancy commencement, there is no legal impediment to the occupation of the premises for residential purposes. The landlord should have done this.
Section 45(1)(c) of the RTA says the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. The landlord did not comply with all requirements.
I find the landlord has caused and contributed to the unlawful occupation by failing to comply with sections 36 and 45(1)(c) of the RTA.
Apart from the issues before me today, there is no specific complaint about the landlord managing the tenancy.
It is concerning that the landlord converted the rumpus area to a flat without the Council’s consent and knowing it did not have a fire rating.
In my view, the landlord must refund the whole of the rent paid and reimburse the cost of instructing Mr McGregor.
The costs ordered are proved. Filing fee
Because Benjamin Bushell has wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4587909 — net $12,304.61 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund - unlawful residential premises	$11,520.00	Rent refund - unlawful residential premises
Expert invoice	$764.17	Expert invoice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$12,304.61
Total payable by Landlord to Tenant	$12,304.61

Order

The landlord’s application for suppression is declined.
Street Smart Property Management Limited As Agent For Konda Anuragini.M & Ujwal Rao Jared Hoy Fong must pay Benjamin Bushell $12,304.61 immediately.

Reasons

Both parties attended the hearing.
Mr Bushell appeared as the tenant. Mr McGregor appeared as an expert for the tenant.
Mr Fong appeared for the landlord.
Mr Bushell confirmed he received the bond ($1,440) in full. There was no bond left in the Bond Centre.
The issue for me to determine is whether the flat rented by Mr Bushell is an unlawful residential premises. If a refund on rent is necessary, what is the appropriate amount to be refunded?
The tenancy commenced on 12 August 2022.
On 31 May 2023, Mr Bushell terminated his tenancy under section 56A of the Residential Tenancies Act 1986 (“RTA”). In the termination notice, Mr Bushell informed Mr Fong that the flat he rented did not have Council consent and was not fire-rated.
Mr Bushell vacated the premises immediately due to the flat was unconsented, and the premises posed a fire safety hazard to him.
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 and 45(1)(c) RTA. See section 78A(2) RTA.

Is the 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 premises Mr Bushell occupied was and still is part of the landlord's house. It is not in dispute that the landlord converted the rumpus into a flat known to the landlord as Flat 3, 151 Trafalgar Street, Onehunga, Auckland. This address is not a legal address known to Auckland City Council.
Mr Bushell called Mr McGregor as his expert witness. Mr McGregor is an expert in architectural design and a qualified mechanical engineer. He was a building inspector for Auckland City Council in the late 1990s. Mr McGregor is now 70 years old.
In the hearing, Mr McGregor walked me through his report from the first visit to the flat. He said, “...I was there, I noticed, number one, there was a door going into the garage. And then, on a closer look, it didn't appear to be up to standard. It was a gut feeling. Purely from experience.”
Because of his “gut feeling and his experience,” Mr McGregor got the property file from the Council and went through the entire file.
Mr McGregor said in evidence that “the flat” in issue is described as a rumpus room on the plan. Mr McGregor submitted that “... a rumpus room is not a habitable space, because the habitable space is ... a permanent living like sleeping room.” The rumpus room, therefore did not need a fire rating because “it was just a usable room downstairs”.
What drew Mr McGregor’s attention was that the landlord did a drawing and applied to the Council in 2021 to convert the whole bottom area into a flat.
But on 18 July 2022, the landlord cancelled the consent. The landlord did not give a reason for cancelling. Mr McGregor, however submitted that the landlord probably got the price for getting the bottom area a fire rating, and the price was too high and then made an economic decision not to proceed to the conversion of the downstairs area.
Mr McGregor submitted that the discovery of this cancellation was important because it showed the landlord was aware of his legal obligation.
Mr McGregor also found the flat had a kitchen sink with a built-in hot plate. Mr McGregor gave evidence that a kitchen sink with a built-in hot plate would not be lawful because the flat was not an approved living space with a fire rating.
In Mr McGregor’s report, he said: “The use of this area as a Self Contained Flat is illegal and a breach of the Building Act. It presents as not only illegal building works but also a Fire Hazard in terms of life and property safety for both occupants of the illegal flat and the building as a whole when let as a separate flat.”
Mr McGregor was critical of the landlord and said: “[You] put your tenant in jeopardy if there's a fire upstairs, but it is also put the tenant upstairs in jeopardy if there's a fire downstairs. That is why the fire ratings are there. It is tough and it is pain, but that is the reality of it. If there is a fire, who says that everyone is going to get out in one place and purely because work has not been done to separate the fire elements of it or the fire zones of it. If you have done it properly, you can have a fire in the bottom flat ... and it doesn't affect upstairs. They get half an hour's rating to get people out of the top flat. But if you have no fire rating, it can go through there like a dose of salt, like it did in the complex down in Wellington, where fire can start very quick, exceedingly quick.”
Mr McGregor further said that is “... why I am a little bit dogmatic about it when I find it, you know.”
In my view, Mr. McGregor's dogmatic approach is justified. Tenants are not mere cash cows for landlords; they have the right to live in their homes with peace of mind.
Mr Fong did not mount a defence after hearing Mr McGregor’s evidence. In my view, Mr Fong accepted the flat was unlawful residential premises.
Accordingly, I find the flat is unlawful residential premises. Compensation
Section 36 of the RTA says the landlord shall take all reasonable steps to ensure that, at the tenancy commencement, there is no legal impediment to the occupation of the premises for residential purposes. The landlord should have done this.
Section 45(1)(c) of the RTA says the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. The landlord did not comply with all requirements.
I find the landlord has caused and contributed to the unlawful occupation by failing to comply with sections 36 and 45(1)(c) of the RTA.
Apart from the issues before me today, there is no specific complaint about the landlord managing the tenancy.
It is concerning that the landlord converted the rumpus area to a flat without the Council’s consent and knowing it did not have a fire rating.
In my view, the landlord must refund the whole of the rent paid and reimburse the cost of instructing Mr McGregor.
The costs ordered are proved. Filing fee
Because Benjamin Bushell has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4587909 — Tenancy dispute at Unit/Flat 3, 151 Trafalgar Street, Onehunga, Auckland 1061

At a glance

Tenancy Tribunal case 4587909 — Tenancy dispute at Unit/Flat 3, 151 Trafalgar Street, Onehunga, Auckland 1061

At a glance

Award balance

Claims & awards

Order

Reasons

Is the premises unlawful residential premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the premises unlawful residential premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions