What was Tenancy Tribunal case 4630849 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $7,185.4 immediately, calculated as

How much money was awarded in case 4630849?

Deduction From Rent Reimbursement (U…: $395.00 awarded to landlord; Filing Fee: $20.44 awarded to tenant; Rent Reimbursement: $7,560.00 awarded to tenant

What type of tenancy dispute was case 4630849?

The dispute type was not classified.

Where can I read the official tribunal order for case 4630849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9992778-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4630849 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $7,185.4 immediately, calculated as

How much money was awarded in case 4630849?

Deduction From Rent Reimbursement (U…: $395.00 awarded to landlord; Filing Fee: $20.44 awarded to tenant; Rent Reimbursement: $7,560.00 awarded to tenant

What type of tenancy dispute was case 4630849?

The dispute type was not classified.

Where can I read the official tribunal order for case 4630849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9992778-Tribunal_Order_Redacted.pdf.

Unit/Flat 1, 19 Charntay Avenue, Clover Park, Auckland 2019 Tenancy Tribunal Case 4630849 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4630849 — net $7,185.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Deduction from rent reimbursement (Utilities	$395.00		Deduction from rent reimbursement (Utilities
Rent reimbursement		$7,560.00	Rent reimbursement
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$395.00	$7,580.44
Net award		$7,185.44
Total payable by Landlord to Tenant		$7,185.44

Order

[The tenant/s] must pay [The landlord/s] $7,185.4 immediately, calculated as shown in the table below:
The Tribunal orders suppression of the parties’ names and identifying details.

Reasons

Both parties attended the hearing.
On 20 December 2023 the Tribunal made an Order that: “By declaration, the agreement between [The tenant/s], and [the Landlord/s] in relation to Unit/Flat 1, 19 Charntay Avenue, Clover Park, Auckland 2019 is a residential tenancy and is therefore subject to the Residential Tenancies Act 1986 (the RTA).”
Today's hearing is to determine the tenant’s claim that the premises are unlawful.
Section 78A RTA provides that: “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), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Where premises are found to be unlawful, “...the Tribunal may order the landlord to pay to 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 residential 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.” (s.78A(4))
The premises comprise an open carport which has been closed in by ranch slider type doors. It has had a toilet and shower installed. The kitchen comprises some cabinets with a benchtop above, with a single gas burner hob supplied by gas from a stand alone gas bottle. There is a laundry type tub but no handbasin in the toilet/ shower area and no kitchen sink. It is lined, painted and has carpet and linoleum flooring.
Key evidence was given by a Council compliance officer Ms Timoteo, who visited and inspected the premises on request from the tenant.
In her evidence, Ms Timoteo was careful to clarify that her role was to check the premises for Council compliance, not to undertake a health and safety assessment.
Ms Timoteo’s evidence is that the Council file shows that a building consent was issued in 1986. The consent includes the installation of a wash tub and associated plumbing in the carport. There is no consent for the installation of the shower and toilet. Her evidence is that the premises occupied by the tenant remain consented only for use as a carport.
Ms Timoteo’s observations confirmed that there is no extractor or openable window in the bathroom/ toilet area and that there was no sink other than the laundry tub.
I find that that these premises are not able to be lawfully occupied for residential purposes as a separate dwelling.
The non-compliance is more than just minor or technical. Having a completely enclosed shower/ toilet area with almost no headroom in the shower with no opening widows or extractor fan and no kitchen or bathroom sink, as well as being unconsented, the premises are not safe or adequate for occupation as a residence.
The landlords’ evidence is that all aspects of the conversion had been completed before they bought the premises. They have from time to time used the premises as an extension to their home when guests come to stay but they have not made a habit of renting out the space.
They say that previously, a friend approached them about an acquaintance of his being able to stay for a while, as a favour. That person stayed for a short while and made some cash payments to them to help out with overheads.
They were then approached by the tenant’s previous landlord who is a workmate of theirs. The ceiling of the premises the tenant had been renting collapsed and he needed to find somewhere else to go quite urgently.
The landlords were asked if they could help the tenant out and they agreed, expecting and intending that it would be only a short transitional stay, but it became extended. The tenant occupied the premises from 11 December 2022 to 9 July 2023.
A clear intent of s.78A is that landlords should not be able to profit from renting out unlawful premises. That is reflected in the provisions of s.78A(4).
In my view, given that intent, it would not be just to allow the landlords to benefit financially from renting out premises which are clearly not suitable for occupation as a separate residence. The rent should be refunded.
For the purposes of s.78A(4)(a)(ii), I do find that there are special circumstances here namely: a. the landlords were not in the business of renting out the space but had done so on request to assist the tenant; and b. the landlords paid for the gas, water and electricity used at the property, including that used by the tenant.
In those circumstances, my view is that while the landlords should not financially benefit from renting out the premises, neither should they be financially penalised.
Accordingly, I deduct from the rent refund an amount I estimate to be a reasonable allowance for gas, water and electricity used by the tenant during his occupation of the premises.
I have made that estimate based on a consideration of utility accounts for the time the tenant occupied the premises, as well as the evidence given during the hearing about the parties’ respective patterns of utility use. I have attributed 25% of the usage charges to the tenant noting that although there were 3 persons occupying the whole of the property, there were less amenities in the premises than in the landlords’ part of the property, which was also able to accommodate guests. I have not included any fixed charges or broadband charges in the calculation.
The tenant claims that he paid rent through to 7 July 2023 when he moved out. He has provided bank records showing 27 rent payments of $280.00, the first being on 23 November 2022 and the last on 29 May 2023. The tenant’s evidence is that he continued to pay after that date, in cash. The landlords deny having received any payments after 29 May 2023, in cash or otherwise.
This aspect of the claim is for the tenant to prove. I do not find it proved that rent payments were made by him beyond those shown on the bank summary.
The landlords breached obligations owed to the tenant, to properly document the tenancy, provide the premises in a reasonable state of repair and ensure it complied with Healthy Homes standards.
In the circumstances of this case as outlined, having ordered refund of the rent paid by the tenant, there is no further loss to compensate for and considering the criteria in s.109(3), I do not consider any additional award of exemplary damages would be just.
The tenant has been successful with the claim, and I order reimbursement of the filing fee.

Claims and awards in Tenancy Tribunal application 4630849 — net $7,185.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Deduction from rent reimbursement (Utilities	$395.00		Deduction from rent reimbursement (Utilities
Rent reimbursement		$7,560.00	Rent reimbursement
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$395.00	$7,580.44
Net award		$7,185.44
Total payable by Landlord to Tenant		$7,185.44

Order

[The tenant/s] must pay [The landlord/s] $7,185.4 immediately, calculated as shown in the table below:
The Tribunal orders suppression of the parties’ names and identifying details.

Reasons

Both parties attended the hearing.
On 20 December 2023 the Tribunal made an Order that: “By declaration, the agreement between [The tenant/s], and [the Landlord/s] in relation to Unit/Flat 1, 19 Charntay Avenue, Clover Park, Auckland 2019 is a residential tenancy and is therefore subject to the Residential Tenancies Act 1986 (the RTA).”
Today's hearing is to determine the tenant’s claim that the premises are unlawful.
Section 78A RTA provides that: “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), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Where premises are found to be unlawful, “...the Tribunal may order the landlord to pay to 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 residential 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.” (s.78A(4))
The premises comprise an open carport which has been closed in by ranch slider type doors. It has had a toilet and shower installed. The kitchen comprises some cabinets with a benchtop above, with a single gas burner hob supplied by gas from a stand alone gas bottle. There is a laundry type tub but no handbasin in the toilet/ shower area and no kitchen sink. It is lined, painted and has carpet and linoleum flooring.
Key evidence was given by a Council compliance officer Ms Timoteo, who visited and inspected the premises on request from the tenant.
In her evidence, Ms Timoteo was careful to clarify that her role was to check the premises for Council compliance, not to undertake a health and safety assessment.
Ms Timoteo’s evidence is that the Council file shows that a building consent was issued in 1986. The consent includes the installation of a wash tub and associated plumbing in the carport. There is no consent for the installation of the shower and toilet. Her evidence is that the premises occupied by the tenant remain consented only for use as a carport.
Ms Timoteo’s observations confirmed that there is no extractor or openable window in the bathroom/ toilet area and that there was no sink other than the laundry tub.
I find that that these premises are not able to be lawfully occupied for residential purposes as a separate dwelling.
The non-compliance is more than just minor or technical. Having a completely enclosed shower/ toilet area with almost no headroom in the shower with no opening widows or extractor fan and no kitchen or bathroom sink, as well as being unconsented, the premises are not safe or adequate for occupation as a residence.
The landlords’ evidence is that all aspects of the conversion had been completed before they bought the premises. They have from time to time used the premises as an extension to their home when guests come to stay but they have not made a habit of renting out the space.
They say that previously, a friend approached them about an acquaintance of his being able to stay for a while, as a favour. That person stayed for a short while and made some cash payments to them to help out with overheads.
They were then approached by the tenant’s previous landlord who is a workmate of theirs. The ceiling of the premises the tenant had been renting collapsed and he needed to find somewhere else to go quite urgently.
The landlords were asked if they could help the tenant out and they agreed, expecting and intending that it would be only a short transitional stay, but it became extended. The tenant occupied the premises from 11 December 2022 to 9 July 2023.
A clear intent of s.78A is that landlords should not be able to profit from renting out unlawful premises. That is reflected in the provisions of s.78A(4).
In my view, given that intent, it would not be just to allow the landlords to benefit financially from renting out premises which are clearly not suitable for occupation as a separate residence. The rent should be refunded.
For the purposes of s.78A(4)(a)(ii), I do find that there are special circumstances here namely: a. the landlords were not in the business of renting out the space but had done so on request to assist the tenant; and b. the landlords paid for the gas, water and electricity used at the property, including that used by the tenant.
In those circumstances, my view is that while the landlords should not financially benefit from renting out the premises, neither should they be financially penalised.
Accordingly, I deduct from the rent refund an amount I estimate to be a reasonable allowance for gas, water and electricity used by the tenant during his occupation of the premises.
I have made that estimate based on a consideration of utility accounts for the time the tenant occupied the premises, as well as the evidence given during the hearing about the parties’ respective patterns of utility use. I have attributed 25% of the usage charges to the tenant noting that although there were 3 persons occupying the whole of the property, there were less amenities in the premises than in the landlords’ part of the property, which was also able to accommodate guests. I have not included any fixed charges or broadband charges in the calculation.
The tenant claims that he paid rent through to 7 July 2023 when he moved out. He has provided bank records showing 27 rent payments of $280.00, the first being on 23 November 2022 and the last on 29 May 2023. The tenant’s evidence is that he continued to pay after that date, in cash. The landlords deny having received any payments after 29 May 2023, in cash or otherwise.
This aspect of the claim is for the tenant to prove. I do not find it proved that rent payments were made by him beyond those shown on the bank summary.
The landlords breached obligations owed to the tenant, to properly document the tenancy, provide the premises in a reasonable state of repair and ensure it complied with Healthy Homes standards.
In the circumstances of this case as outlined, having ordered refund of the rent paid by the tenant, there is no further loss to compensate for and considering the criteria in s.109(3), I do not consider any additional award of exemplary damages would be just.
The tenant has been successful with the claim, and I order reimbursement of the filing fee.

Tenancy Tribunal case 4630849 — Tenancy dispute at Unit/Flat 1, 19 Charntay Avenue, Clover Park, Auckland 2019

At a glance

Tenancy Tribunal case 4630849 — Tenancy dispute at Unit/Flat 1, 19 Charntay Avenue, Clover Park, Auckland 2019

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