What was Tenancy Tribunal case 4665277 about?

The tribunal order states: Tamra Holland must pay [The tenant/s] $5,026.44 immediately, as shown in the

How much money was awarded in case 4665277?

Compensation: Unlawful Residential P…: $2,006.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4665277?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4665277?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10091809-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4665277 about?

The tribunal order states: Tamra Holland must pay [The tenant/s] $5,026.44 immediately, as shown in the

How much money was awarded in case 4665277?

Compensation: Unlawful Residential P…: $2,006.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4665277?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4665277?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10091809-Tribunal_Order_Redacted.pdf.

10A Moana Avenue, Belmont, Auckland 0622 Tenancy Tribunal Case 4665277 — State of repair

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4665277 — net $5,026.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Exemplary damages: Failure to maintain	$2,000.00	Failure to maintain
Compensation: Unlawful Residential Premises - Rent Refund	$2,006.00	Unlawful Residential Premises - Rent Refund
Exemplary damages: Breach of quiet enjoyment	$250.00	Breach of quiet enjoyment
Exemplary damages: Healthy Home Statements noncompliance	$750.00	Healthy Home Statements noncompliance
Net award	$5,026.44
Bond	$790.00
Total payable by Landlord to Tenant	$5,026.44

Both parties attended the hearing. The tenant was represented by counsel.

The tenant has brought a number of claims against the landlord. These are as follows: a. The premises are unlawful residential premises without the required consent b. Failure to complete the Health Home Compliance Statement and associated information c. Failure to maintain the premises d. Breach of quiet enjoyment

As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. In this case, as it is a tenant application, that means that it is for the tenant to establish her respective claims on “the balance of probabilities”. That means that she must establish that what she is claiming is more likely than not.

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.

The premises consist of a two-level house with a tenant residing above her. This tenant resided downstairs in what was once a garage. The downstairs area consisted of a studio type arrangement with a bedroom and living area, along with a kitchenette. Unlawful Residential Premises:

The tenant occupied the downstairs unit, and another occupant was upstairs. The upstairs is conserved the main living part of the original dwelling, and the downstairs has been converted for residential use from what was previously a garage.

The tenant provided a letter from Auckland Council confirming that the downstairs area did not have a building consent to turn the garage into a dwelling. The tenant says that she was not informed that it was unconsented when she moved in.

There is a separate entry for each unit, and neither occupant can access the other unit. The tenant says that there is a cook-top but not a proper kitchen in her downstairs unit.

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.

Section 78A(2) of 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.

The unit occupied by the tenant is clearly a residential premise, in that it is a part of the premises, used for occupation as a place of residence. It was intended that the tenant live in the premises to which she did.

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 this case the particular residential purpose concerned is the occupation of the downstairs area as a distinct household unit, separate to the adjoining part of the building.

Although it is clear that the premises can be occupied for residential purposes an issue arises when looking at the division of the premises into two separate household units.

Because both limbs of section 78A(2) must be satisfied before a premises is deemed an unlawful residential premises, consideration of section 36 and 45(1)(c) should be undertaken when considering whether the use of the premises in this particular manner is unlawful, as if the occupation of the premises is unlawful as a result of either section, it will most likely follow 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 the 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 then pursuant to the Act, it is an unlawful residential premises.

Sections 114 and 15 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:

means of escape from fire, protection of other property, sanitary facilities, structural performance, and fire-rating performance:

access and facilities for persons with disabilities (if this is a requirement under section 118); and ii. will,—

if it complied with the other provisions of the building code immediately before the change of use, continue to comply with those provisions; or

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 of 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.

Accordingly, this is 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. The Council confirmed the premises do not have a building consent to convert a garage into a dwelling. Accordingly, there is no evidence that the downstairs unit is compliant with the Building Code.

Accordingly, 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 therefore makes occupation of it unlawful.

Accordingly, the premises are “unlawful residential premises”.

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 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.

The tenant has had the benefit of a place to live since October 2022.

In this case, I consider that it would not be just to refund the entire rent paid. I have determined that an award of $2006.00 is fair. That is a rent refund of approximately 30% of the total paid by the tenant for the duration of the tenancy. Healthy Homes Compliance Statement:

The tenant claims the landlord has not included healthy homes compliance details in the tenancy agreement. All tenancy agreements must include information in respect of Healthy Homes requirements. See section 13A Residential Tenancies Act.

The tenant says that pages 8 through to 23 of the Tenancy Agreement relating to Healthy Homes Standards (“HHS”) had not been completed in respect of Healthy Homes Standards level of compliance; heating standard compliance; insulation; ventilation; moisture ingress and drainage and draught stopping.

The tenant then recorded her own notes in respect of the various shortcomings with the property: a. The lights always tripped out b. No oven in the kitchen c. Inadequate heating d. Mould on the blinds and curtains e. Mould around the windows

A landlord must include a signed statement in the Tenancy Agreement that provides the following information: a. That on, and after, the commencement of the tenancy the landlord will comply with the healthy homes standards as required by the Act. b. And include any information prescribed by the regulations made under s138B(5) of the Act.

Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.

The landlord failed to complete the details of compliance with the Healthy Homes Standards. I find the landlord has committed an unlawful act.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

I consider the landlord’s failure in this respect must be deliberate. There is a pre-formatted section in the tenancy agreement for her to complete and she has failed to do so, despite completing other portions of the agreement.

I consider there is a public interest, and an interest for these tenants specifically, in landlords turning their minds to the Healthy Homes requirements, and proactively ensuring that rented premises are compliant. Tenants should not need to chase their landlords for compliance.

I consider that an award of exemplary damages is appropriate. In the circumstances, I award the maximum penalty of $750.00. Failure to maintain:

[The tenant/s] claims that the landlord has breached her obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, a landlord must • provide the premises in a reasonable state of cleanliness • provide and maintain the premises in a reasonable state of repair • comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 • comply with any relevant enactment in relation to buildings, health and safety • provide an adequate means for the collection and storage of water if there is no reticulated supply

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

Counsel for the tenant submits that the kitchen had two burners built into the kitchen bench. There was no oven, and therefore no ability to bake anything.

There was no smoke alarm at the property when she moved in. The tenant raised this issue with the landlord. The Citizens Advice Bureau also emailed the landlord on her behalf on 2 February and 7 February 2023 in respect of these issues. A smoke alarm was eventually installed on 10 February 2023.

The tenant says that the power in the bathroom would often trip. After heavy rain in January 2023, water came through the bathroom ceiling light. An electrician attended and advised the tenant that he had health and safety concerns regarding the light unit and the amount of water. He removed the light unit and placed it outside to dry. The electrician returned on 10 February 2023. He was unable to restore electricity to the bathroom due to concerns about water leaking through the ceiling. The tenant was forced to use a torch for light in the bathroom.

The heating was inadequate. The tenant says that the property had a small heater mounted on the lounge wall. She did not use it as it appeared old. There was no heat pump at the property.

The landlord responded by stating that she did what she could under difficult circumstances to address the various issues raised by the tenant.

I have also carefully considered the landlord’s letter of explanation to the tenant’s lawyer and associated text message correspondence between the parties.

Notwithstanding the landlord’s explanation I find they have committed an unlawful act. Nothing alters the fact that, put simply, these premises should not have been rented out in the first place. It was not fit for purpose.

I am satisfied that the failure to provide the premises in a satisfactory condition at the start of the tenancy was intentional. And because of this the landlord was constantly on the back foot reacting to requests for repairs and maintenance rather than being proactive prior to the start of the tenancy.

Where problems are known but there is a failure to remedy, the unlawful act is intentional. There has been significant publicity about Healthy Home standards which a diligent landlord would be expected to know about. The effect of the failure to maintain significantly affected the tenant’s enjoyment and possibly her health. It is in the public interest that landlords comply with the law relating to tenancies so that living conditions for tenants are healthy and safe.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986. Breach of privacy:

[The tenant/s] claims the landlord has breached her privacy.

The landlord served a 90-day notice to terminate on 1 February 2023. The landlord’s mother knocked on the door several times but there was no answer. She then placed the notice through an open kitchen window. The tenant does not have an email address. Landlord says that she also emailed the notice to the tenant’s WINZ case worker. The tenant says that she saw the landlord’s mother lift the kitchen blind and put her head through the window to deliver the notice.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

I accept the tenant’s evidence that the landlord’s mother interfered with her privacy and quiet enjoyment on 1 February 2023.

This claim is proven.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.

The tenant applied for non-publication of her name and identifying details. She has substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.

I am also grateful for counsel’s comprehensive and helpful written submissions in support of the tenant’s application.

Reasons

Claims and awards in Tenancy Tribunal application 4665277 — net $5,026.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Exemplary damages: Failure to maintain	$2,000.00	Failure to maintain
Compensation: Unlawful Residential Premises - Rent Refund	$2,006.00	Unlawful Residential Premises - Rent Refund
Exemplary damages: Breach of quiet enjoyment	$250.00	Breach of quiet enjoyment
Exemplary damages: Healthy Home Statements noncompliance	$750.00	Healthy Home Statements noncompliance
Net award	$5,026.44
Bond	$790.00
Total payable by Landlord to Tenant	$5,026.44