What was Tenancy Tribunal case 4635666 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 4635666?

Compensation: Rent Refund: $13,750.00 awarded to tenant

What type of tenancy dispute was case 4635666?

The dispute type was not classified.

Where can I read the official tribunal order for case 4635666?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10076153-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4635666 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 4635666?

Compensation: Rent Refund: $13,750.00 awarded to tenant

What type of tenancy dispute was case 4635666?

The dispute type was not classified.

Where can I read the official tribunal order for case 4635666?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10076153-Tribunal_Order_Redacted.pdf.

159A Scenic Drive, Titirangi, Auckland 0604 Tenancy Tribunal Case 4635666 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4635666 — net $13,750.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent refund	$13,750.00	Rent refund
Net award	$13,750.00
Total payable by Landlord to Tenant	$13,750.00

Claims and awards in Tenancy Tribunal application 4635666 — net $13,750.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent refund	$13,750.00	Rent refund
Net award	$13,750.00
Total payable by Landlord to Tenant	$13,750.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
It is declared that the premises are unlawful residential premises. Section 78A Residential Tenancies Act 1986 (“RTA”).
The tenancy of [The tenant/s] at 159A Scenic Drive, Titirangi, Auckland 0604 is terminated, and possession is granted to Waitakere Film And Arts 184 & 186 Trustee Limited Jeanae Frances Gordon, at 5pm, Friday 12 April 2024.

Reasons

Both parties attended the hearing. The landlord attended in person and was represented by counsel. The tenant had requested an adjournment which was declined so instead the hearing proceeded and the tenant attended by telephone.
A hearing was held on 1 December 2023 where the Tribunal declared that it had jurisdiction to hear the claims in respect of these premises.
A substantive hearing was set down for 11 March 2023. At the earlier hearing the tenant had indicated that he sought compensation for the improvements that he has carried out at the premises as well as for unlawful termination. The landlord was seeking termination of the tenancy, for the tenant to remove the tyres on the premises and reinstate the premises to how they were when he moved in.
The landlord had given the tenant notice for termination of the tenancy on 23 March 2023. The tenancy was to terminate on 22 June 2023. The tenant did not vacate the tenancy and has remained living there.
The tenant says that he did not vacate the premises because he thought that the notice was invalid because he did not think that the landlord intended to convert the premises into commercial premises (section 51(2)(e) Residential Tenancies Act) which was the reason given in the notice. The tenant had also experienced some difficulty in obtaining alternate accommodation.
As mentioned in the earlier order, the area which is covered by the tenancy is disputed. The tenant considers that he was able to share a workshop as part of the tenancy. The landlord says that this area was separate and never part of the tenancy.
The Act defines residential premises as any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful 1 .
A workshop cannot be used or intended to be used for residential purposes and instead would be used for commercial purposes. Section 5(1)(a) excludes commercial premises from the jurisdiction of the Tribunal.
At the second hearing the landlord, through counsel, submitted that the Tribunal should declare the premises as an unlawful residential tenancy and for the tenancy to be terminated. 2
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 and 45(1)(c) RTA. See section 78A(2) RTA.
The Tribunal may order termination of the tenancy if satisfied that it would be inequitable to refuse to make the order. See section 56A(3) RTA. 1 Section 2, Residential Tenancies Act 1986 2 Section 56A Residential Tenancies Act 1986
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 photographs submitted clearly show that when the tenant began living in the premises it was an unlined shed mainly constructed of corrugated iron. The tenant began using the shed, or old lunchroom (as it was referred to), as a workshop. The tenant began to stay overnight at the premises. Eventually the tenant lived on a full-time basis at the premises although the landlord denies full knowledge of this. Also, during this time, the tenant carried out extensive improvements over several years to the premises, which again the landlord denied knowledge of.
It is agreed between the parties that the premises are unlawful residential premises. They cannot be occupied for residential purposes. Given this, I also make an order that the tenancy is terminated. The landlord has agreed to allow the tenant one month to remove himself and his belongings from the premises. This is generous given that notice was given for the tenant to vacate a year ago. The tenancy is terminated, and possession is to pass to the landlord at 5pm on Friday 12 April 2024.
Where the Tribunal finds unlawful residential premises section 78A(4) applies. Section 78A(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)(ii) should apply to this case because the tenant has had some benefit from living at the property.
I must carefully weigh what amount of rent it is fair to deduct. Other than considering 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 s78A 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.
The tenant began using the premises in 2014 and he says that initially he worked for the landlord in exchange for use of the premises. It is not clear when he began living at the premises, but he began paying rent in 2021. The landlord produced a rent summary showing that between 2021 and 2024 the tenant paid $27,500.00 for rent. The landlord claims that the tenant owes arrears amounting to $21,300.00 to 1 March 2024.
The Tribunal must not order the tenant to pay arrears in such circumstances unless I am satisfied that it would be unjust not to make the order. I do not consider that it would be unjust not to make the order. The landlord’s claim for rent arrears is therefore dismissed.
In considering the factors set out above I reach the conclusion that it is appropriate for the tenant to be liable for half of the rent that he has paid. The half paid by the tenant takes account of the amenity that he has had and the condition of the premises when he first moved in. I compensate the tenant for half of the rent that he has paid as recorded in the landlord’s rent summary, which amounts to $13,750.00.
The tenant has claimed for compensation in relation to improvements that he has carried out to the premises. It is clear from the photographs that over a period of years the tenant has carried out significant improvements. What isn’t clear is that the tenant had the landlord’s agreement to carry out the improvements and what impact this was to have on the tenancy and what would happen when the tenancy ended.
The tenant’s evidence is that he initially received free rent in exchange for work that he carried out. There is no evidence that the improvements to the premises were in exchange for rent or cheaper rent. If there was an agreement between the parties in relation to compensation for the improvements nothing was recorded in writing.
It may be that the tenant has a claim in another jurisdiction in relation to the improvements however, I cannot make an order for compensation given the lack of evidence that a contractual arrangement existed that would impact on the tenancy.
The landlord also sought orders in relation to the tenant removing his possessions from the premises. I have explained to the tenant that he must remove his belongings at the end of the tenancy and in addition he must leave the premises in a reasonably clean and tidy condition. See section 40(1)(e) Residential Tenancies Act.
I refer to the landlord’s claim that the tenant should reinstate the premises to how they were when he moved in. Due to length of time that the tenant has carried out extensive improvements to the premises this is unlikely to be possible or realistic. The unlined shed is now fully lined with a tiled functioning kitchen and bathroom. The landlord has benefited from the work carried out by the tenant. The tenant should not be punished for the work that he has done. While there is no record of the landlord agreeing to the improvements there has at least been substantial acquiescence by the landlord given that this has occurred over several years.
If the landlord seeks compensation for damages due to the improvements or removal of the improvements, then an application will need to be filed after the tenant has vacated.
In relation to the tenant’s claim for compensation for improvements that is dismissed for similar reasons, in that while a lot of work has been carried out, the landlord cannot benefit from it as the premises are unlawful residential premises and not able to be used for residential purposes. In addition, all the improvements were carried out without council consent.
As both parties have had some success with their applications, I make no award for reimbursement of the filing fee. For the same reason I suppress the tenant’s name from the order as he has requested.

Tenancy Tribunal case 4635666 — Tenancy dispute at 159A Scenic Drive, Titirangi, Auckland 0604

At a glance

Tenancy Tribunal case 4635666 — Tenancy dispute at 159A Scenic Drive, Titirangi, Auckland 0604

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions