What was Tenancy Tribunal case 4663292 about?

The tribunal order states: Austar Property Services Limited As Agent For Deep Cove Holdings Limited

How much money was awarded in case 4663292?

Compensation: Overpayment of utiliti…: $1,000.00 awarded to tenant; UL Residential Premises: $2,500.00 awarded to tenant

What type of tenancy dispute was case 4663292?

The dispute type was not classified.

Where can I read the official tribunal order for case 4663292?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9583664-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4663292 about?

The tribunal order states: Austar Property Services Limited As Agent For Deep Cove Holdings Limited

How much money was awarded in case 4663292?

Compensation: Overpayment of utiliti…: $1,000.00 awarded to tenant; UL Residential Premises: $2,500.00 awarded to tenant

What type of tenancy dispute was case 4663292?

The dispute type was not classified.

Where can I read the official tribunal order for case 4663292?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9583664-Tribunal_Order_Redacted.pdf.

79 The Avenue, Lynfield, Auckland 1042 Tenancy Tribunal Case 4663292 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4663292 — net $3,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
UL Residential Premises	$2,500.00	UL Residential Premises
Compensation: Overpayment of utilities	$1,000.00	Overpayment of utilities
Net award	$3,500.00
Total payable by Landlord to Tenant	$3,500.00

Claims and awards in Tenancy Tribunal application 4663292 — net $3,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
UL Residential Premises	$2,500.00	UL Residential Premises
Compensation: Overpayment of utilities	$1,000.00	Overpayment of utilities
Net award	$3,500.00
Total payable by Landlord to Tenant	$3,500.00

Order

Austar Property Services Limited As Agent For Deep Cove Holdings Limited must pay [The tenant/s] $3,500.00 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The tenant has made a claim for reimbursement of rent based on the premises being unlawful residential premises; and compensation for overpayment of utilities.
The landlord has brought a cross-application seeking compensation for broken door glass.
At the outset, I must record my apologies, because after the hearing concluded I realised that during the hearing the landlord’s claim for compensation had not been discussed. DescriptionLandlordTenant UL Residential Premises $2,500.00 Compensation: Overpayment of utilities $1,000.00 Total payable by Landlord to Tenant $3,500.00
As such, the order above does not include consideration of the landlord’s claim. It has not been dismissed. It has simply not been considered. If the parties cannot reach an agreement regarding this issue, then the landlord has leave to re-file that application.
What follows below therefore deals only with the tenants’ claims.
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Summary of Tenant Evidence
The tenants say that they responded to an advertisement for what they thought would be a standalone 3-bedroom premises. They provided a copy of the advertisement that they responded to.
There was no mention in the advertisement that there was a downstairs unit occupied separately from the main part of the premises.
The tenants say that when they viewed the property, they were made aware that someone else resided in the downstairs part of the property, however there was no discussion about shared utilities or anything of that nature.
The tenants say they were advised that electricity and internet were already connected at the premises but not that it was shared.
After they moved in, they discovered that the utilities were in the name of the downstairs tenant.
They then started to receive electricity readings from the downstairs tenant from a sub-meter that was apparently located downstairs.
They later discovered that there was only one hot water cylinder in the house, which was located in the garage, and that in fact they had been paying for the hot water consumption for the downstairs unit because it was not connected properly to the downstairs sub-meter.
Similarly, the tenants say that they were advised (at first) by their internet service provider that they could not connect internet to the house because there was already a connection in place. Approximately two weeks after they moved in, they were able to resolve that issue and had their own separate internet connection.
However, the issue with the electricity remained.
The tenants say that although an electrician came to re-wire the hot water cylinder so that it measured usage for downstairs, that job was not done correctly. Consequently, they believe they were still paying for hot water usage for the downstairs tenant.
The tenants further say that as of about one week before the hearing a separate hot water cylinder was connected for the downstairs unit, they still believe that the measuring of this unit is on “their side” of the usage meter.
The tenants say that they have complained about this multiple times to the property manager. Between August and November 2022, the tenants paid money to the downstairs tenant totalling $720.00 and between December 2022 to June 2023 they had paid a further $4,021.45. This included a $70 reconnection fee because the power had been disconnected when the previous downstairs tenant vacated.
Some of the bills between December 2022 to June 2023 had been partially reimbursed by the new downstairs tenant but the tenants say that they do not accept that person was charged accurately and consider they have overpaid, in addition to the hassle of having to constantly seek reimbursement.
The tenants have also raised the issue of the premises being unlawful residential premises.
They say that they have checked with Auckland Council and there is no consent for there to be two dwellings on this premises. They provided a screenshot from the Council property valuation website confirming that the use recorded is “single unit excluding bach”.
They say they have real concerns about this, in particular because they are unsure about the health and safety implications. They say that the downstairs unit does not have a properly installed oven and instead that tenant uses a portable gas stovetop. A photograph taken of that unit was provided at the hearing.
The tenants seek a refund of half their rent and electricity. Summary of Landlord Evidence
The landlord said that at the time the tenants moved into the premises the owner’s son was living downstairs. The landlord said that they considered everything to be above board in terms of the utilities because there was a separate check meter for the downstairs unit.
The landlord said that it was some time later that they realised that the hot water cylinder (which supplied water to the entire premises) was connected to the upstairs meter, not the downstairs check meter.
They say that issue is now completely resolved, as they had an electrician come in to rewire the cylinder to properly measure downstairs consumption.
The landlord further said that as of a week before the hearing there is now also an entirely separate hot water cylinder for the downstairs unit. The landlord denies that this new cylinder is in any way connected to the tenant’s meter.
They said that the owner had offered to pay the tenants $1000 as recompense for the oversight regarding the hot water cylinder however the tenants had not agreed to participate in mediation.
In relation to unlawful residential premises, the landlord said that the property has a code of compliance certificate for all areas of the building.
The landlord further said that that they believe there is an adequate firewall between the two dwellings. This belief arises because a contractor, who was arranged by the owner, has apparently checked the firewall.
However, the landlord was unable to contact the builder in question or provide any independent confirmation of the status of the firewall. Findings Utilities
Section 39 of the Act provides that the tenant is responsible for the costs of outgoings, including electricity, that are exclusively attributable to the tenant’s occupation of the premises or use of the facilities.
At the commencement of the tenancy, the tenants were asked to pay usage costs, albeit there was clearly some inaccuracy due to the way the hot water cylinder had been wired.
Some months into the tenancy when the owner’s son vacated the premises the tenants were then paying for the entire electricity bill and expected to seek reimbursement from the downstairs tenant. Again, there was the complicating factor of the accuracy or otherwise due to the wiring of the hot water cylinder.
I find that throughout the tenancy, the power paid by the tenants was not exclusively attributable to the tenants’ usage and was not therefore compliant with section 39 of the Act.
Some of the problem arose through inaccurate measure (such as when the hot water was wrongly connected) but some was due to the tenants paying the fixed costs for electricity. In so doing they were effectively subsiding the downstairs tenant.
In a situation where there is no clear separation, it is not appropriate for the tenant to have liability for the entire invoice and to then seek reimbursement from the other tenant. In this situation, the landlord should bear responsibility for the account overall and should seek reimbursement from each household, assuming of course there is an accurate means of measuring usage.
Having said that, the tenants should (in the normal run of things) be liable for their electricity usage and in this case, they have clearly used electricity for the duration of the tenancy. They are not entitled to reimbursement of the entire amount paid.
I therefore order the landlord to pay the tenant $1000.00 as a contribution towards the amount the tenant has overpaid.
Moving forward, the landlord and tenant must ensure that the arrangement is in accordance with the Act. Unlawful Residential Premises
Section 78A(2) of the Residential Tenancies Act 1986 (“the Act”) states: 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— 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 where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), ..., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 36 of the Act states that: The landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
Section 45(1)(c) states 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;
The property occupied by the tenant is clearly a residential premises, in that it is a part of the premises, used for occupation as a place of residence. Put simply, it was intended that the tenant live in the premises, and the tenant did, in fact, live there.
The question is whether the premises can be lawfully occupied as residential premises, either generally or for the particular residential purposes for which the tenant occupied it, and whether the landlord’s failure to comply with either section 35 or section 45(1)(c) caused or contributed to the unlawfulness of the occupation.
In the present case, the particular residential purposes concerned is the occupation of the premises as a distinct household unit, separate to the adjoining (downstairs) part of the building.
Although I of course accept that the premises can be occupied, generally, for residential purposes (because the building as a whole has consent for residential use) an issue arises when looking at the division of the premises into two separate household units.
Given that both limbs of section 78A(2) must be satisfied before a premises is deemed an unlawful residential premises, it is useful to consider section 36 and 45(1)(c) when considering whether the use of the premises in this particular manner is unlawful. If the occupation of the premises is unlawful as a result of either section, it will be likely that the landlord’s failure to comply with those sections contributed to the unlawfulness of the occupation.
Section 45(1)(c), in this case, requires consideration of whether then landlord has complied with the provisions of the Building Act 2004, in particular, sections 40, 114 and 115 of that Act.
Section 40 of the Building Act states that a household unit, being a building intended for residential occupation, must have a building consent and be certified as being compliant by having a code compliance certificate.
If it has neither, or a building consent only, then pursuant to the Act, it is an unlawful residential premises.
Sections 114 and 115 deal with the change of use of consented buildings.
Section 114 of the Building Act requires the owner to give notice of a change of use of the building and makes failure to do so an offence.
Section 115 of the Building Act provides that an owner of a building must not change the use of the building – (a) in a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority 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; and (b) in any other case, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use,— i. will comply, as nearly as is reasonably practicable, with every provision of the building code that relates to the following: (A) means of escape from fire, protection of other property, sanitary facilities, structural performance, and fire-rating performance: (B) access and facilities for persons with disabilities (if this is a requirement under section 118); and ii. will,— (A) if it complied with the other provisions of the building code immediately before the change of use, continue to comply with those provisions; or (B) if it did not comply with the other provisions of the building code immediately before the change of use, continue to comply at least to the same extent as it did then comply.
To determine whether there has been a change in the use of a building, consideration must be given to the Buildings (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 (“the regulations”).
“Change the use” is defined in the regulations as: ...to change the use (determined in accordance with regulation 6) of all or a part of the building from one use (the old use) to another (the new use) and with the result that the requirements for compliance with the building code in relation to the new use are additional to, or more onerous than, the requirements for compliance with the building code in relation to the old use.
Regulation 6 states that every building or part of a building has a use as specified in the table in schedule 2 of the regulations.
The premises, in the present case, is consented as an “SH – sleeping single home” use containing a single household unit. That is confirmed by the property valuation records kept by Auckland Council.
The division of the building into two household units would make it an “SR – sleeping residential” use, namely 2 attached separate household units being occupied by two separate households.
Accordingly, I consider this to be a change to the use of the building to which section 115 of the Building Act applies and the owner was required to obtain written notice from the Council that the building, in its new use, will comply with the Building Code.
There is no evidence of such written notice, nor is there evidence that the conversion of the premises into two units was consented by the Council or compliant with the Building Code. It may well be that the two dwellings are compliant with the Building Code, but in the absence of any consent I cannot speculate on that.
Accordingly, I consider 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, in my view, makes occupation of it in that particular manner, unlawful.
Accordingly, the premises are “unlawful residential premises”.
Returning then, to section 78A of the Act. Section 78A provides that where the Tribunal declares the residential premises to be unlawful, it 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 entire rent paid by the tenant in the period 4 August 2022 to the date of hearing was $35,750.00.
The public policy behind the introduction of section 78A is: •To hold landlords to account for choosing to expose tenants to the health and safety risks of renting out unconsented or non-compliant properties; •To disincentivise the practice; and •To ensure landlords don’t profit from the practice.
In the present case, there is no evidence as to the safety or otherwise of the adjoining household unit. As there has been no consenting process it is unclear whether the conversion in the adjoining part of the building meets the requirements of the Building Act. The policy behind section 78A was that compliance with the Building Act and codes and other legislative requirements meant that tenants were protected from, for example, a fire breaking out in an adjoining unit due to an insufficient firewall and causing risk to life and property.
On the other hand, the tenant has had the benefit of a place to live for over a year and has not raised any significant maintenance or health and safety issues during that time.
In this case, I consider that it would not be just to refund the entire rent paid. I have determined that an award of $2,500.00 is fair. That is a rent refund of just under 8% of the total paid by the tenant.
Because the tenants have wholly succeeded with the claim, I must reimburse the filing fee. J R Smith 30 October 2023

Tenancy Tribunal case 4663292 — Tenancy dispute at 79 The Avenue, Lynfield, Auckland 1042

At a glance

Award balance

Tenancy Tribunal case 4663292 — Tenancy dispute at 79 The Avenue, Lynfield, Auckland 1042

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions