What was Tenancy Tribunal case 4627253 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 4627253?

Compensation: Unlawful residential p…: $9,500.00 awarded to tenant; Previous Order Application 4627253 D…: $3,520.44 awarded to tenant

What type of tenancy dispute was case 4627253?

The dispute type was not classified.

Where can I read the official tribunal order for case 4627253?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9504023-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4627253 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 4627253?

Compensation: Unlawful residential p…: $9,500.00 awarded to tenant; Previous Order Application 4627253 D…: $3,520.44 awarded to tenant

What type of tenancy dispute was case 4627253?

The dispute type was not classified.

Where can I read the official tribunal order for case 4627253?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9504023-Tribunal_Order_Redacted.pdf.

2C McWhirter Place, New Lynn, Auckland 0600 Tenancy Tribunal Case 4627253 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4627253 — net $13,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Previous order application 4627253 dated 12/07/2023	$3,520.44	Previous order application 4627253 dated 12/07/2023
Compensation: Unlawful residential premises	$9,500.00	Unlawful residential premises
Net award	$13,020.44
Total payable by Landlord to Tenant	$13,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Sycotic Holdings Limited Greg David Durrant must pay [The tenant/s] $13,020.44 immediately as set out below.

Reasons

The tenant attended the hearing. The landlord did not attend the hearing. As the landlord had notice of the hearing it proceeded in his absence.
The landlord attended hearing held on 29 November 2022 in person. The tenant attended by telephone. The hearing was adjourned to enable the landlord to produce evidence including that the premises can be used for residential premises.
The landlord did not produce evidence to confirm that the premises could be used for residential premises at the hearing held on 20 February 2023. He was advised to obtain such information from the local authority, being Auckland Council. That hearing was adjourned for the evidence to be obtained and produced. However, the landlord did not attend the hearing held on 12 July 2023 or today’s hearing.
The tenant produced evidence showing that under the Unitary Plan the premises are in a light industrial zone. On the Auckland Council website it states the land use for this property is engineering and metal working. The tenant stated that prior to her occupying the premises the landlord ran his plumbing business from there.
The tenant produced a photograph showing the interior with a large roller door and apparently this is where the tenant had her living area. She also said that there was no form of heating provided by the landlord.
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.
The landlord did not provide any evidence that the premises was a lawful residential premise.
The tenant produced evidence that satisfies me that the premises were unlawful residential premises.
Section 114 and 115 of the Building Act 2004 provide that an owner must give notice to Council when the owner changes the use of a building, and that an owner cannot change the use of the building unless the territorial authority has given consent.
A change from the building from being for commercial use to being for residential use should have been notified to Council and an owner cannot change the use of the building unless the territorial authority has given consent.
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. Adherence to the Building Codes is important as those codes set out minimum standards with such things as fire prevention and smoke alarms, insulation, ventilation, structural strength and integrity, escape routes for fire and sanitation.
Section 45(1)(c) of the RTA requires a landlord to comply with “all requirements of the buildings, health and safety so far as they apply to the premises”. The landlord’s failure to notify Council and obtain consent to change the use of the building is a breach of the Building Act and Building Code and therefore a breach of section 45 (1)(c) RTA. I am satisfied that as the landlord changed the use of the property; that the premises were unable to be lawfully occupied for residential purposes.
Where it finds unlawful residential premises section 78A(4) applies. S78A(4) states; The Tribunal may order the landlord to pay the tenant – (i)The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful premises; or (ii)An amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.
I consider that section 78A(4)(a)(ii) should apply to this case because applying section 78A(4)(a)(i) would be unfair to the landlord as the tenant has had some amenity of living at the property.
At this point I must carefully weigh what amount of rent it is fair to deduct. Other than taking into account the nature of the premises, “the special circumstances” that I must have regard to are not stated within the RTA. However other Tribunal decisions have weighed the following factors: 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 time he 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.
It is not clear when the tenancy ended however the landlord stated that it was for a fixed term due to end on 1 September 2023. The tenant’s evidence is that the landlord took steps to evict her before the end of the tenancy and she ended up leaving in July 2023. Unfortunately, while she left the tenancy it meant that she was homeless for a period of time and lost the care of her children.
I consider that the tenant should be refunded $100.00 per week for the 95 weeks (to the end of June 2023) that she occupied the premises and therefore the amount awarded by way of a rent refund is $9,500.00.
On 12 July 2023 the Tribunal made an order relating to this tenancy, for return of the bond money to the tenant. The previous order is incorporated into this order for enforcement purposes.
This order concludes all applications brought by both parties.

Claims and awards in Tenancy Tribunal application 4627253 — net $13,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Previous order application 4627253 dated 12/07/2023	$3,520.44	Previous order application 4627253 dated 12/07/2023
Compensation: Unlawful residential premises	$9,500.00	Unlawful residential premises
Net award	$13,020.44
Total payable by Landlord to Tenant	$13,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Sycotic Holdings Limited Greg David Durrant must pay [The tenant/s] $13,020.44 immediately as set out below.

Reasons

The tenant attended the hearing. The landlord did not attend the hearing. As the landlord had notice of the hearing it proceeded in his absence.
The landlord attended hearing held on 29 November 2022 in person. The tenant attended by telephone. The hearing was adjourned to enable the landlord to produce evidence including that the premises can be used for residential premises.
The landlord did not produce evidence to confirm that the premises could be used for residential premises at the hearing held on 20 February 2023. He was advised to obtain such information from the local authority, being Auckland Council. That hearing was adjourned for the evidence to be obtained and produced. However, the landlord did not attend the hearing held on 12 July 2023 or today’s hearing.
The tenant produced evidence showing that under the Unitary Plan the premises are in a light industrial zone. On the Auckland Council website it states the land use for this property is engineering and metal working. The tenant stated that prior to her occupying the premises the landlord ran his plumbing business from there.
The tenant produced a photograph showing the interior with a large roller door and apparently this is where the tenant had her living area. She also said that there was no form of heating provided by the landlord.
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.
The landlord did not provide any evidence that the premises was a lawful residential premise.
The tenant produced evidence that satisfies me that the premises were unlawful residential premises.
Section 114 and 115 of the Building Act 2004 provide that an owner must give notice to Council when the owner changes the use of a building, and that an owner cannot change the use of the building unless the territorial authority has given consent.
A change from the building from being for commercial use to being for residential use should have been notified to Council and an owner cannot change the use of the building unless the territorial authority has given consent.
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. Adherence to the Building Codes is important as those codes set out minimum standards with such things as fire prevention and smoke alarms, insulation, ventilation, structural strength and integrity, escape routes for fire and sanitation.
Section 45(1)(c) of the RTA requires a landlord to comply with “all requirements of the buildings, health and safety so far as they apply to the premises”. The landlord’s failure to notify Council and obtain consent to change the use of the building is a breach of the Building Act and Building Code and therefore a breach of section 45 (1)(c) RTA. I am satisfied that as the landlord changed the use of the property; that the premises were unable to be lawfully occupied for residential purposes.
Where it finds unlawful residential premises section 78A(4) applies. S78A(4) states; The Tribunal may order the landlord to pay the tenant – (i)The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful premises; or (ii)An amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.
I consider that section 78A(4)(a)(ii) should apply to this case because applying section 78A(4)(a)(i) would be unfair to the landlord as the tenant has had some amenity of living at the property.
At this point I must carefully weigh what amount of rent it is fair to deduct. Other than taking into account the nature of the premises, “the special circumstances” that I must have regard to are not stated within the RTA. However other Tribunal decisions have weighed the following factors: 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 time he 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.
It is not clear when the tenancy ended however the landlord stated that it was for a fixed term due to end on 1 September 2023. The tenant’s evidence is that the landlord took steps to evict her before the end of the tenancy and she ended up leaving in July 2023. Unfortunately, while she left the tenancy it meant that she was homeless for a period of time and lost the care of her children.
I consider that the tenant should be refunded $100.00 per week for the 95 weeks (to the end of June 2023) that she occupied the premises and therefore the amount awarded by way of a rent refund is $9,500.00.
On 12 July 2023 the Tribunal made an order relating to this tenancy, for return of the bond money to the tenant. The previous order is incorporated into this order for enforcement purposes.
This order concludes all applications brought by both parties.

Tenancy Tribunal case 4627253 — Tenancy dispute at 2C McWhirter Place, New Lynn, Auckland 0600

At a glance

Tenancy Tribunal case 4627253 — Tenancy dispute at 2C McWhirter Place, New Lynn, Auckland 0600

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions