What was Tenancy Tribunal case 4625709 about?

The tribunal order states: The tenancy of [The tenant/s] at 17 Sturges Avenue, Otahuhu, Auckland 1062

How much money was awarded in case 4625709?

Compensation: Moving Costs: $3,000.00 awarded to tenant

What type of tenancy dispute was case 4625709?

The dispute type was not classified.

Where can I read the official tribunal order for case 4625709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9838460-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4625709 about?

The tribunal order states: The tenancy of [The tenant/s] at 17 Sturges Avenue, Otahuhu, Auckland 1062

How much money was awarded in case 4625709?

Compensation: Moving Costs: $3,000.00 awarded to tenant

What type of tenancy dispute was case 4625709?

The dispute type was not classified.

Where can I read the official tribunal order for case 4625709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9838460-Tribunal_Order_Redacted.pdf.

17 Sturges Avenue, Otahuhu, Auckland 1062 Tenancy Tribunal Case 4625709 — Tenancy dispute

Order

Claims and awards in Tenancy Tribunal application 4625709 — net $3,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: moving costs	$3,000.00	moving costs
Net award	$3,000.00
Total payable by Landlord to Tenant	$3,000.00

The tenancy of [The tenant/s] at 17 Sturges Avenue, Otahuhu, Auckland 1062 is terminated, and possession is granted to Barfoot & Thompson Limited As Agent For Currow Investments Ltd, at 5pm on 15 March 2024.

Barfoot & Thompson Limited As Agent For Currow Investments Ltd must pay [The tenant/s] $3,000.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

The tenant has counterclaimed for damages on account of misrepresentation.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.

Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.

However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.

The tenant has breached their obligations by occupying the premises in breach of Regulation 19 of the Housing Improvement Regulations 1947 (‘HIR’) on prevention of overcrowding in houses.

I am satisfied on the evidence adduced before the Tribunal that this property is only lawfully consented to be occupied as a 3 bedroom house in which the maximum number of occupants is 7. The 2 rooms situated at the garage of the house cannot be lawfully nor safely occupied as bedrooms.

The tenant concedes that 12 people, consisting of 3 adults aged 18 years and over and 9 children under the age of 15, are presently occupying the premises.

For the record, the tenancy agreement stipulates only 6 occupants and the owner of the premises has verbally allowed the tenant to house 7 people.

But Regulation 19 of the HIR provides clear rules on what constitutes overcrowding and based on the 3 bedrooms measuring 12.09sqm, 13.2sqm and 11.25sqm respectively in the house, only 7 persons may occupy the house for residential purposes.

The breach is not capable of remedy as the tenant cannot and will not be breaking up the children under their care.

It would be inequitable to refuse to terminate the tenancy in the circumstances. The Tribunal cannot countenance a clear and obvious breach of the HIR which goes towards health and safety concerns of overcrowding.

In making an order to terminate the tenancy on 15 March 2024, I have taken into account that the tenants have resided there since 2018 after being told by the landlord that the property is a “spacious 5 bedroom house”. None of the 5 property managers prior to the current property manager has taken any issue with the overcrowding issue now before the Tribunal.

The tenant and their family have apparently been able to safely live at the premises for over 5 years.

I therefore allow the tenant 2 months to find another place to relocate to.

I also allow the tenant’s counterclaim for damages due to misrepresentation. The landlord has advertised the property in January 2018 as a “spacious 5 bedroom house” despite the property being consented only as a 3 bedroom house. The 2 rooms inside the garage cannot be lawfully or safely occupied as bedrooms. Thinking that the property can accommodate the tenant and all of their children, the tenant moved in and occupied the premises, including using the two rooms in the garage as bedrooms.

While there is no apparent loss in terms of rent overpayment as the rent has always been charged below the market rent for a 3 bedroom property, I award the tenant compensation in the form of moving out costs to be incurred by the family of 12 due to the landlord’s misrepresentation in advertising the property as a 5 bedroom house.

Only the amounts ordered are proved.

Claims and awards in Tenancy Tribunal application 4625709 — net $3,000.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: moving costs	$3,000.00	moving costs
Net award	$3,000.00
Total payable by Landlord to Tenant	$3,000.00

Order

The tenancy of [The tenant/s] at 17 Sturges Avenue, Otahuhu, Auckland 1062 is terminated, and possession is granted to Barfoot & Thompson Limited As Agent For Currow Investments Ltd, at 5pm on 15 March 2024.
Barfoot & Thompson Limited As Agent For Currow Investments Ltd must pay [The tenant/s] $3,000.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The tenant has counterclaimed for damages on account of misrepresentation.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
The tenant has breached their obligations by occupying the premises in breach of Regulation 19 of the Housing Improvement Regulations 1947 (‘HIR’) on prevention of overcrowding in houses.
I am satisfied on the evidence adduced before the Tribunal that this property is only lawfully consented to be occupied as a 3 bedroom house in which the maximum number of occupants is 7. The 2 rooms situated at the garage of the house cannot be lawfully nor safely occupied as bedrooms.
The tenant concedes that 12 people, consisting of 3 adults aged 18 years and over and 9 children under the age of 15, are presently occupying the premises.
For the record, the tenancy agreement stipulates only 6 occupants and the owner of the premises has verbally allowed the tenant to house 7 people.
But Regulation 19 of the HIR provides clear rules on what constitutes overcrowding and based on the 3 bedrooms measuring 12.09sqm, 13.2sqm and 11.25sqm respectively in the house, only 7 persons may occupy the house for residential purposes.
The breach is not capable of remedy as the tenant cannot and will not be breaking up the children under their care.
It would be inequitable to refuse to terminate the tenancy in the circumstances. The Tribunal cannot countenance a clear and obvious breach of the HIR which goes towards health and safety concerns of overcrowding.
In making an order to terminate the tenancy on 15 March 2024, I have taken into account that the tenants have resided there since 2018 after being told by the landlord that the property is a “spacious 5 bedroom house”. None of the 5 property managers prior to the current property manager has taken any issue with the overcrowding issue now before the Tribunal.
The tenant and their family have apparently been able to safely live at the premises for over 5 years.
I therefore allow the tenant 2 months to find another place to relocate to.
I also allow the tenant’s counterclaim for damages due to misrepresentation. The landlord has advertised the property in January 2018 as a “spacious 5 bedroom house” despite the property being consented only as a 3 bedroom house. The 2 rooms inside the garage cannot be lawfully or safely occupied as bedrooms. Thinking that the property can accommodate the tenant and all of their children, the tenant moved in and occupied the premises, including using the two rooms in the garage as bedrooms.
While there is no apparent loss in terms of rent overpayment as the rent has always been charged below the market rent for a 3 bedroom property, I award the tenant compensation in the form of moving out costs to be incurred by the family of 12 due to the landlord’s misrepresentation in advertising the property as a 5 bedroom house.
Only the amounts ordered are proved.

Tenancy Tribunal case 4625709 — Tenancy dispute at 17 Sturges Avenue, Otahuhu, Auckland 1062

At a glance

Award balance

Tenancy Tribunal case 4625709 — Tenancy dispute at 17 Sturges Avenue, Otahuhu, Auckland 1062

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Frequently asked questions