What was Tenancy Tribunal case 4620349 about?

The tribunal order states: Andrew Lai must pay [The tenant/s] $5,636.44 immediately, calculated as

How much money was awarded in case 4620349?

Compensation: Reimbursement Of Rent: $5,616.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4620349?

The dispute type was not classified.

Where can I read the official tribunal order for case 4620349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9636426-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4620349 about?

The tribunal order states: Andrew Lai must pay [The tenant/s] $5,636.44 immediately, calculated as

How much money was awarded in case 4620349?

Compensation: Reimbursement Of Rent: $5,616.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4620349?

The dispute type was not classified.

Where can I read the official tribunal order for case 4620349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9636426-Tribunal_Order_Redacted.pdf.

12 Exmouth Road, Northcote, Auckland 0627 Tenancy Tribunal Case 4620349 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4620349 — net $5,636.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Reimbursement of rent	$5,616.00	Reimbursement of rent
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,636.44
Total payable by Landlord to Tenant	$5,636.44

Order

Andrew Lai must pay [The tenant/s] $5,636.44 immediately, calculated as shown in the table below.
It is declared that the premises are unlawful residential premises. Section 78A Residential Tenancies Act 1986 (“RTA”).

Reasons

The tenant attended the hearing. The landlord did not attend the hearing. The hearing proceeded in the landlord’s absence. Background
The tenancy began on 18 July 2022 and ended on 8 December 2022 when the tenant moved out.
The tenant did not have a copy of the tenancy agreement and he says he was never given one. The landlord had allowed him to take a photograph of the agreement, but the tenant misplaced the photograph. The tenant has produced many requests for a copy of the tenancy agreement, all of which seem to have been ignored. Tenant’s application
The tenant has applied in respect of breaches of the Healthy Homes standards and compensation for the landlord failing to fix a leak. Unlawful residential tenancy
The tenancy is the downstairs area of a large house, and the upstairs is occupied by another tenancy.
The tenancy consists of a small carpeted open plan room leading to the bathroom and then to a large, tiled area containing a kitchenette. There is an outside door next to the kitchenette which was not able to be used and some stairs leading to the upstairs with a locked door.
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. 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.
If the landlord has applied for termination for rent arrears, and the Tribunal declares the residential tenancy to be unlawful, the Tribunal may order termination, but it is not required to do so. See section 78A(3)(b) RTA.
There are factors which indicate that this is likely to be an unlawful residential tenancy including that both tenancies having the same address, one letterbox, use of the one rubbish bin, and the rent includes water and power suggesting the absence of separate water and power meters.
In addition, the tenant said that an Auckland Council employee had attended at the premises and mentioned that only one tenancy was allowed at the premises.
In the present case, the particular residential purposes concerned is the occupation of the premises as a second household unit, separate to the top part of the building. While the premises can be occupied, generally, for residential purposes, as the building as a whole has Council consent for residential use, an issue arises when looking at the division of the premises into two separate household units.
Section 45(1)(c) provides that 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.
One of those enactments is the Building Act 2004. Sections 114 and 115 of the Building Act deals with the change of use of consented buildings. Section 115 states that where the change involves the incorporation in the building of 1 or more household units where household units did not exist before the territorial authority (in this case Auckland Council) must give the owner written notice that it is satisfied, on reasonable grounds, that the building, in its new use, will comply, as nearly as is reasonably practicable with the building code in all respects.
I consider it more likely than not 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 to divide the premises into two household units makes occupation of it in that particular manner, unlawful. Accordingly, the premises is an unlawful residential premises.
Where it finds unlawful residential premises under section 78A(4), the Tribunal may order the landlord to (i) repay the tenant all the rent they paid; or (ii) a lesser amount of rent repayment that it finds fair having regard to the special circumstances of the case, including the nature of the premises.
I consider that section 78A(4)(ii) should apply to this case because applying section 78A(4)(i) would be unfair to the landlord as the tenant has had some amenity of living at the property.
I must carefully weigh what amount of rent it is fair to deduct.
The special circumstances I must have regard to are not stated in the RTA except for the nature of the premises nor have the higher courts determined what are ‘special circumstances’ that the Tenancy Tribunal should take into account when determining the rent reduction.
However, the Tribunal has determined a number of claims under this provision and in line with those determinations I have taken into account the following: 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 she 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.
I find issue with the landlord’s conduct during the tenancy. The tenant produced evidence showing that the carpet was mouldy at the beginning of the tenancy. While the landlord arranged for the carpet to be cleaned once at the beginning of the tenancy this did not address the issue causing the mould. The tenant also produced evidence showing that the carpeted area was flooded on several occasions from a leak and the landlord took no action to remedy the leak. While there is an email from the landlord saying that a contractor looked at the leak on 24 October 2022, no steps were taken to fix the leak, repair the wet wallboard or replace or dry the sodden carpet.
In the meantime, the tenant lived in these conditions while regularly asking the landlord to fix the situation. The tenant’s evidence was that he was unwell due to the living conditions and had no option but to take unpaid leave from work on five occasions due to nasal and chest issues which he attributes to the mould and damp conditions. The tenant also suffered damage to his belongings due to the mould.
The benefit that the tenant received in this tenancy was somewhere to sleep, although he was unwell due to the standard of the conditions. Also, the facilities for cooking were severely lacking.

What is the appropriate remedy?

It is in the public interest that when a landlord offers premises for a residential tenancy that they take all steps to ensure that those premises are lawful.
The tenancy lasted for 20 weeks and seven days. The tenant paid rent totalling $8,022.86.
After taking account of the evidence and the circumstances I consider that the tenant should be liable for 30% of the rent paid. That means the tenant is entitled to a rent refund of $5,616.00 being 70% of the rent paid.
Specific factors that I have considered in determining this award are: (a) The landlord’s complete failure to address the leak which flooded the tenancy, soaking the carpet and causing mould growth; (b) The landlord’s failure to repair the door where the broken glass was replaced with newspaper; (c) The tenant’s attempts to fix the leak and the damage caused by the water to the carpet; (d) Potential safety issues in relation to the two separate tenancies; (e) The landlord’s failure to provide the tenant with a copy of the tenancy agreement; (f) The landlord’s failure to lodge the bond with Tenancy Services.
The claims sought by the tenant have been taken in to account with the award made.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. For the same reason I have suppressed the tenant’s name.

Claims and awards in Tenancy Tribunal application 4620349 — net $5,636.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Reimbursement of rent	$5,616.00	Reimbursement of rent
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,636.44
Total payable by Landlord to Tenant	$5,636.44

Order

Andrew Lai must pay [The tenant/s] $5,636.44 immediately, calculated as shown in the table below.
It is declared that the premises are unlawful residential premises. Section 78A Residential Tenancies Act 1986 (“RTA”).

Reasons

The tenant attended the hearing. The landlord did not attend the hearing. The hearing proceeded in the landlord’s absence. Background
The tenancy began on 18 July 2022 and ended on 8 December 2022 when the tenant moved out.
The tenant did not have a copy of the tenancy agreement and he says he was never given one. The landlord had allowed him to take a photograph of the agreement, but the tenant misplaced the photograph. The tenant has produced many requests for a copy of the tenancy agreement, all of which seem to have been ignored. Tenant’s application
The tenant has applied in respect of breaches of the Healthy Homes standards and compensation for the landlord failing to fix a leak. Unlawful residential tenancy
The tenancy is the downstairs area of a large house, and the upstairs is occupied by another tenancy.
The tenancy consists of a small carpeted open plan room leading to the bathroom and then to a large, tiled area containing a kitchenette. There is an outside door next to the kitchenette which was not able to be used and some stairs leading to the upstairs with a locked door.
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. 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.
If the landlord has applied for termination for rent arrears, and the Tribunal declares the residential tenancy to be unlawful, the Tribunal may order termination, but it is not required to do so. See section 78A(3)(b) RTA.
There are factors which indicate that this is likely to be an unlawful residential tenancy including that both tenancies having the same address, one letterbox, use of the one rubbish bin, and the rent includes water and power suggesting the absence of separate water and power meters.
In addition, the tenant said that an Auckland Council employee had attended at the premises and mentioned that only one tenancy was allowed at the premises.
In the present case, the particular residential purposes concerned is the occupation of the premises as a second household unit, separate to the top part of the building. While the premises can be occupied, generally, for residential purposes, as the building as a whole has Council consent for residential use, an issue arises when looking at the division of the premises into two separate household units.
Section 45(1)(c) provides that 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.
One of those enactments is the Building Act 2004. Sections 114 and 115 of the Building Act deals with the change of use of consented buildings. Section 115 states that where the change involves the incorporation in the building of 1 or more household units where household units did not exist before the territorial authority (in this case Auckland Council) must give the owner written notice that it is satisfied, on reasonable grounds, that the building, in its new use, will comply, as nearly as is reasonably practicable with the building code in all respects.
I consider it more likely than not 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 to divide the premises into two household units makes occupation of it in that particular manner, unlawful. Accordingly, the premises is an unlawful residential premises.
Where it finds unlawful residential premises under section 78A(4), the Tribunal may order the landlord to (i) repay the tenant all the rent they paid; or (ii) a lesser amount of rent repayment that it finds fair having regard to the special circumstances of the case, including the nature of the premises.
I consider that section 78A(4)(ii) should apply to this case because applying section 78A(4)(i) would be unfair to the landlord as the tenant has had some amenity of living at the property.
I must carefully weigh what amount of rent it is fair to deduct.
The special circumstances I must have regard to are not stated in the RTA except for the nature of the premises nor have the higher courts determined what are ‘special circumstances’ that the Tenancy Tribunal should take into account when determining the rent reduction.
However, the Tribunal has determined a number of claims under this provision and in line with those determinations I have taken into account the following: 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 she 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.
I find issue with the landlord’s conduct during the tenancy. The tenant produced evidence showing that the carpet was mouldy at the beginning of the tenancy. While the landlord arranged for the carpet to be cleaned once at the beginning of the tenancy this did not address the issue causing the mould. The tenant also produced evidence showing that the carpeted area was flooded on several occasions from a leak and the landlord took no action to remedy the leak. While there is an email from the landlord saying that a contractor looked at the leak on 24 October 2022, no steps were taken to fix the leak, repair the wet wallboard or replace or dry the sodden carpet.
In the meantime, the tenant lived in these conditions while regularly asking the landlord to fix the situation. The tenant’s evidence was that he was unwell due to the living conditions and had no option but to take unpaid leave from work on five occasions due to nasal and chest issues which he attributes to the mould and damp conditions. The tenant also suffered damage to his belongings due to the mould.
The benefit that the tenant received in this tenancy was somewhere to sleep, although he was unwell due to the standard of the conditions. Also, the facilities for cooking were severely lacking.

What is the appropriate remedy?

It is in the public interest that when a landlord offers premises for a residential tenancy that they take all steps to ensure that those premises are lawful.
The tenancy lasted for 20 weeks and seven days. The tenant paid rent totalling $8,022.86.
After taking account of the evidence and the circumstances I consider that the tenant should be liable for 30% of the rent paid. That means the tenant is entitled to a rent refund of $5,616.00 being 70% of the rent paid.
Specific factors that I have considered in determining this award are: (a) The landlord’s complete failure to address the leak which flooded the tenancy, soaking the carpet and causing mould growth; (b) The landlord’s failure to repair the door where the broken glass was replaced with newspaper; (c) The tenant’s attempts to fix the leak and the damage caused by the water to the carpet; (d) Potential safety issues in relation to the two separate tenancies; (e) The landlord’s failure to provide the tenant with a copy of the tenancy agreement; (f) The landlord’s failure to lodge the bond with Tenancy Services.
The claims sought by the tenant have been taken in to account with the award made.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. For the same reason I have suppressed the tenant’s name.

Tenancy Tribunal case 4620349 — Tenancy dispute at 12 Exmouth Road, Northcote, Auckland 0627

At a glance

Tenancy Tribunal case 4620349 — Tenancy dispute at 12 Exmouth Road, Northcote, Auckland 0627

At a glance

Award balance

Claims & awards

Order

Reasons

What is the appropriate remedy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

What is the appropriate remedy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions