What was Tenancy Tribunal case 4590369 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 4590369?

Compensation: Unlawful premises rent…: $8,198.79 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4590369?

The dispute type was not classified.

Where can I read the official tribunal order for case 4590369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9609596-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4590369 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 4590369?

Compensation: Unlawful premises rent…: $8,198.79 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4590369?

The dispute type was not classified.

Where can I read the official tribunal order for case 4590369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9609596-Tribunal_Order_Redacted.pdf.

3214 Ohaupo Road, Rukuhia, RD 2, Hamilton 3282 Tenancy Tribunal Case 4590369 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4590369 — net $8,219.23 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful premises rent refund	$8,198.79	Unlawful premises rent refund
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$8,219.23
Total payable by Landlord to Tenant	$8,219.23

Claims and awards in Tenancy Tribunal application 4590369 — net $8,219.23 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful premises rent refund	$8,198.79	Unlawful premises rent refund
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$8,219.23
Total payable by Landlord to Tenant	$8,219.23

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The transportable cabin at the tenancy address is unlawful residential premises.
Mohammad Feroz-Mahnaz Feroz have failed to comply with all requirements in respect of buildings, health and safety laws as they apply to the premises.
Mohammad Feroz-Mahnaz Feroz must pay [The tenant/s] $8,219.23 immediately, calculated as shown in table below:

Reasons

The tenant and both landlords attended the hearing on 13 October 2023.
This is a tenant application for compensation and/or a fine (“exemplary damages”) against the landlords, a. for breaches of maintenance and insulation laws, and b. for breach of quiet enjoyment.
The Tribunal will also decide whether the premises are unlawful residential premises and if so whether the landlords should be ordered to refund rent and/or pay a fine.
The specific issues raised by the tenant are:- a. Ongoing problems with the power cutting off, b. Occasional problems with water quality, c. That the cabin she lives in has a lot of condensation and is mouldy and she has had to buy a dehumidifier, a fan and a heater, d. That the water doesn’t drain away properly in the shower and overflows, e. That her quiet enjoyment is breached by the landlords walking around the property and going into the garage in front of the cabin without telling her they are going to, f. That she was not told about construction work that happened in front of the cabin and that the amount of work and lack of access meant she and her daughter had to stay somewhere else for two nights. She wants this cost paid back to her.
Compensation may be awarded to a non-breaching party to recover expenses or loss arising from the breach or as a lump sum or reduction of rent where, for example, the use of the premises has been affected. The Tribunal can recognise non-financial loss such as inconvenience and stress, where appropriate.
Exemplary damages are like a fine or a penalty and can only be awarded when a party has intentionally committed a breach specified as an “unlawful act” (these are listed in Schedule 1A Residential Tenancies Act 1986). The Tribunal must decide whether it is just to award these after considering the breaching party’s intent, the effect of the act, the interests of the innocent party, and the public interest; see s109(3) RTA. Background
The property at this address is rural with one house (in which the landlords live), a caravan or mobile cabin in which the tenant lived (“the cabin”), and various other sheds used for storage and other purposes.
The landlords bought the cabin and put it on the property about 4 years ago. They say that it was only intended as temporary accommodation for family and friends.
The tenant came to live in the cabin from 7 December 2021. She was introduced to the landlords by a mutual contact as she needed accommodation while looking for something more permanent for herself and her primary school aged child.
There was no written tenancy agreement and no bond paid. The rent was $300.00 per week (including power and internet).
The tenant moved out of the cabin on 31 August 2023. The landlords gave the tenant notice to end the tenancy and she did not dispute or disagree with this.
The tenant supplied a record of all payments she has made to the landlord. These add up to 87 payments of $300.00 and one payment of $184.50. This is a total of $26,284.50. The law on landlord obligations
A landlord has legal obligations under the Residential Tenancies Act 1986 (RTA).
This includes to provide a written and signed tenancy agreement with insurance, insulation, and Healthy Homes Standards (HHS) compliance statements completed; (s13A RTA).
There are also maintenance and compliance obligations in s45 RTA to:- a. provide and maintain the premises in a reasonable state of repair; b. comply with all requirements in respect of smoke alarms set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016; c. comply with the Healthy Homes Standards (including insulation requirements) within 90 days of any new, or renewed, tenancy that commences on a date between 1 July 2021 and 27 August 2022. 1 d. comply with any relevant enactment in relation to buildings, health and safety; and e. provide an adequate means for the collection and storage of water if there is no reticulated supply.
The standard for insulation under the HHS is that ceiling insulation must be at least R2.9 and underfloor at least R1.3. 2 The R-value measures insulation according to how well it resists heat flow.
All of the above obligations apply even if a tenant knows the state of the premises at the time that the tenancy is entered into; see s45(3) RTA. 1 Clause 2 of Schedule 1, Residential Tenancies (Healthy Homes Standards) Regulations 2019. 2 Regulations 14 to 18, Residential Tenancies Healthy Homes Standards Regulations 2019. Ceiling insulation of R2.9 (zone 1 or 2), R3.3 (zone 3), installed in accordance with NZS 4246:2016 and at least 120mm thick. Underfloor insulation of R1.3.
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 law on unlawful residential premises
It became apparent during a telephone case conference that the cabin might be unlawful for living in as separate residential premises.
Section 78A of the Residential Tenancies Act 1986 defines unlawful residential premises as follows: (2) For the purposes of this Act, “unlawful residential premises” means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that 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 obligations under section 36 or 45(1)(c) ... as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 36 states: 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.
Where the Tribunal decides that premises are unlawful, the Tribunal may order the landlord to refund all rent paid by the tenant, or it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so.
The sorts of factors the Tribunal may consider when deciding on a refund of rent include:- • The landlord’s motivation for renting the property and their conduct during the tenancy • The tenant’s motivation for renting the property, bringing the claim and the length of time she lived in the property • The benefits received by the landlord and the tenant in renting the property • The seriousness of the regulatory breaches making the premises unlawful • Any other breaches by the landlord • Any detriment or loss suffered by the tenant • The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises and the public interest in discouraging unlawful tenancies • Any other compensation or exemplary damages that are ordered.
The Tribunal may also make a work order requiring the landlord to rectify the unlawfulness of the premises or to comply with any relevant building, health or safety law and can award exemplary damages for a failure to comply. 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. The decision: is the cabin an unlawful residential premises?
The landlords referred to the cabin as a “caravan” as it has wheels and a towbar. It may once have been movable, but the tyres are now flat and perished and it has not been moved since being brought onto the property. In appearance, it is more like a cabin. It is metal-framed and clad, with aluminium windows and a sliding door and sits on small metal jack stands.
The cabin has a bathroom (toilet, sink, shower) and kitchenette supplied with microwave and bench top oven with two elements on top. The sliding door opens onto a small wooden deck adjacent to the cabin.
The Tribunal raised the issue of lawfulness of the cabin and gave the landlords notice of this in the adjournment order dated 10 August 2023.
Neither the tenant nor the landlords gave documentary evidence on the issue. The landlords confirmed that they have not applied for a council consent of any kind.
Neither was there evidence as to whether the plumbing and electrical connections were installed by registered tradespeople. For example, no electrical compliance certificate was provided nor evidence that plumbing was done by a registered plumber and drainlayer.
The landlords did supply an email from a tradesperson who is registered with the Electrical Workers Registration Board as a trainee electrician with a limited certificate. The email is dated 13 October 2023 and says: “checked caravan power and rcd connections, mains supply from house is used using trailer plug and 40A rcd with 16A and 6A for caravan power point and lights. bathroom has extractor fan and working anything plugged into power point above 16A will trip as overload and or any faulty item plugged into will trip the circuit”
The landlords’ property is in the rural zone in Waipā District. The Waipā District Council has a helpful page on its website: Transportable or Tiny Homes - Waipa District Council (waipadc.govt.nz). This page says that detached, self-contained transportable homes are “secondary dwellings” under the District Plan and are permitted in a rural zone if they are no more than 70m 2 in size and comply with all other rules for the zone.
The page also says that: [my underlining] It is important to note that a resource consent (to do with the District Plan) is separate from a building consent (to do with the Building Code). While a resource consent is only required where District Plan rules are infringed, a building consent is required in all cases where a transportable or tiny dwelling is being connected to utility services or where new foundations for the dwelling are being constructed.
The Building Act 2004 (“BA2004”) applies to the cabin.
The BA2004 says that:- a. A building includes a temporary or permanent movable or immovable structure, a vehicle that is immovable and occupied by people on a permanent or long-term basis, and a mechanical, electrical or other system; section 8. b. All building work must comply with the building code whether or not a building consent is required for that work; section 17. c. Building work must not to be carried out except in accordance with a building consent; section 40.
After considering all of the evidence, my decisions are:- a. That the cabin is an unlawful residential premises because:- i. it is more probable than not that the cabin cannot lawfully be occupied for residential purposes because no building consent was obtained for the plumbing and electrical work (utility services); see s78A(2)(a) RTA, and ii. the landlords’ failure to apply for that building consent is what has caused the occupation to be unlawful; see s78A(2)(b) RTA. b. The construction of the cabin itself also requires a building consent because it contains sanitary facilities and cooking facilities, meaning it does not come within one of the exemptions contained in Schedule 1 BA2004. It may be that the company who built the cabin did so with a building consent, but the landlords did not provide any evidence of this. c. The presence of a secondary dwelling under 70m 2 in size is permitted at this property without a resource consent.
The lack of a building consent is a significant breach because the cabin has not been subject to the important safety and sanitary checks that would apply if a building consent had been obtained and compliance signed off.
I will now consider the maintenance and compliance issues raised by the tenant as this will help to determine any compensation as a refund of rent. Maintenance and Healthy Homes Standards issues
Part of the reason the tenant made an application to the Tribunal was because of concerns about day-to-day maintenance issues.
The cabin was required to have ceiling and underfloor insulation from the start of the tenancy and to comply with the Healthy Homes Standards by 7 March 2022 unless exemptions applied.
I record my decisions on these below:- a. Ongoing problems with the power cutting off. The tenant did not provide detailed evidence as to the number of times the power was “cut off”. The landlords’ evidence shows the power being cut off twice due to power company work and about 4 other times due to RCD (residual current device) overload. Photographs of the insulated caravan/trailer plug and RCD switches, and the trainee electrician’s email, show that the power supply was connected to the house mains and had limited capacity so could not manage multiple appliances. The landlords did not provide an electrical compliance certificate or other evidence to show that the power supply connection was safe or suitable for permanent use. However, the fact that an RCD was installed and was working is some assurance of safety. As stated above, a building consent was required for the electrical connection and the absence of this is a regulatory breach of s45(1)(c) RTA. There was some inconvenience to the tenant from the disruptions to supply. However, I am satisfied that the landlords did act when told of problems, so I do not agree that there was a maintenance breach of s45(1)(b) RTA. b. Occasional problems with water quality. The tenant supplied one photo showing water in the bathroom sink with particles in it but agreed that she did not tell the landlord that there was a problem. There is insufficient evidence to prove a breach. c. That the water doesn’t drain away properly in the shower and overflows. The tenant described this problem but there were no photos, or copies of texts or emails raising this with the landlords. There is not enough evidence to prove a breach. I dismiss this claim. d. That the door of the benchtop oven was broken. The photo did show this to be the case but there was no evidence as to when this had happened or whether the tenant told the landlord about this. I dismiss this claim. e. That the cabin has a lot of condensation and is mouldy and she has had to buy a dehumidifier, a fan and a heater. There was one small extractor fan in the bathroom and no kitchen extractor fan. Showering and cooking causes a lot of steam, so it is probable that the cabin was damp. The tenant did not provide photos or other evidence to show the extent of mould or receipts for costs incurred. I find a breach of the Healthy Homes Standards requirement for ventilation due to the absence of a kitchen extraction fan; s45(1)(bb) RTA. f. The tenant asked whether the premises were insulated. The landlord says that this cannot be installed because of the metal framing and cladding of the cabin. No evidence was supplied to support any exemption applying. I find a breach of the Healthy Homes Standards requirement for ceiling and underfloor insulation; s45(1)(bb) RTA. g. After the first hearing where I asked about the presence of a smoke alarm, the tenant claimed that there was no smoke alarm in the cabin. The landlord strongly disputes this and said it was a 10-year long-life battery type and was attached with double sided tape. There is not enough evidence from the tenant to show a breach. I dismiss this claim.
I have decided that it is fair and appropriate to consider the compensation for the above breaches as part of the refund of rent decision relating to the unlawfulness of the premises. This is below. Quiet enjoyment and privacy
The focus of the tenant’s application is concerns about her privacy and saying that the landlords disturbed this. In particular:- a. The landlords coming to her side of the property, using the driveway to access the paddock and garage in front of the cabin, and other sheds, without telling her in advance that they are going to, b. That she was not told about construction work that happened on the driveway in front of the cabin and that the amount of work and lack of access meant she and her daughter had to stay in a motel for two nights. She wants this cost paid back to her.
After considering the evidence, oral and written, my decisions are:- a. That this was a shared rural property where the landlords live as well so it is reasonable that the landlords came to the driveway and garage at times. The tenant said she couldn’t be sure how often this was but about eight times. The text messages do not show that the tenant was upset about this until after mid-May 2023. This is not a breach of privacy. b. The landlords agree they did not tell the tenant that the driveway work was going to happen on the afternoon of 1 June 2023. They explained that the work was arranged at short notice to widen the driveway to allow a shipping container to be delivered by a very large truck. The evidence shows that the work only lasted for about an hour after the tenant arrived home. I accept her evidence that her daughter was very upset and that there was some inconvenience but for this to happen on one occasion for one hour is not a breach of privacy or quiet enjoyment. The tenant decided to stay at the motel for the 2 nights for the sake of her daughter. She is free to do that, but this is not something that the landlord must pay for because there was no unreasonable breach. I do not award compensation.

Should the landlords be required to refund rent and/or pay exemplary damages?

The cabin is unlawful residential premises that the landlords rented out to the tenant for nearly one year and 9 months. The tenant has paid a total of $26,284.50 to the landlords for rent and power and internet costs.
I consider that the tenant should receive some refund of rent. The purpose of the law about unlawful residential premises (s78A RTA) is to discourage landlords from renting out unconsented or unlawful properties which have not been through the proper checks to make sure they are safe and healthy for occupation by tenants. Landlords should not be able to profit from unlawful activity.
The Tribunal may order the landlord to refund all or some of the rent the tenant has paid and can consider a broad range of factors depending on the circumstances of each case; see s78A(4) RTA.
The factors in favour of a refund of rent are:- a. The landlords have breached the requirement to comply with all building, health and safety laws (s45(1)(c)) and the Healthy Homes Standards on insulation and ventilation (s45(1)(bb)) (see ‘Maintenance and Healthy Homes Standards’ section above), b. There is no building consent and no evidence of electrical and plumbing compliance or work being done by certified professionals. This means it is not known for sure that the work is safe and sanitary, c. The tenant did experience some detriment. In particular, she needed a heater and dehumidifier because of the lack of insulation and ventilation but using these sometimes caused the power to turn off (tripping the RCD), d. That there was no written tenancy agreement and therefore no compliance statements relating to Healthy Homes Standards or insurance. This means the tenant did not have the legal information she was entitled to. The landlords seemed to think that if they did not document this as a tenancy then it was simply a “temporary arrangement” that did not have to comply with the law on residential tenancies. This is not the case.
In my view, special circumstances apply which mean that it is fair that there is a partial refund of rent rather than a full refund. The factors I have considered are:- a. That the texts between the parties show that the tenant seemed to live at the premises quite contentedly up until about May 2023, b. That the tenant was in urgent need of a home and herself hoped that this arrangement would be short-term, c. That the initial reason for her application to the Tribunal was because of breaches of privacy rather than significant detriment from the condition of the cabin, d. That the cabin was supplied fully furnished with drapes and the interior and exterior photos indicate it was in good condition.
Taking all of this into account, I consider that it is fair that the rent refund be reduced to equate to the tenant paying $200.00 per week including power and internet. The tenancy was 90 weeks and 3 days in duration. The total rent due is calculated as $18,085.71 ($200x90 weeks plus $85.71 for 3 days).
The total the tenant has paid is $26,284.50. This means the landlords must refund her $8,198.79. This is compensation for all breaches.
The Tribunal may also impose exemplary damages (a fine) where a landlord has intentionally not complied with all laws relating to buildings and safety; see s78A(5)(c) and 45(1)(c) RTA.
The landlords made a deliberate decision not to apply for building consent or check the legal requirements for using the cabin for residential living. However, considering the amount awarded in compensation, I have decided that it would not be just to also award exemplary damages on this occasion. Filing fee and suppression of names
The tenant has been substantially successful in her claims, so I award the filing fee and suppress her name.
There is no good reason to suppress the landlords’ names.

Tenancy Tribunal case 4590369 — Tenancy dispute at 3214 Ohaupo Road, Rukuhia, RD 2, Hamilton 3282

At a glance

Tenancy Tribunal case 4590369 — Tenancy dispute at 3214 Ohaupo Road, Rukuhia, RD 2, Hamilton 3282

At a glance

Award balance

Claims & awards

Order

Reasons

Should the landlords be required to refund rent and/or pay exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the landlords be required to refund rent and/or pay exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions