What was Tenancy Tribunal case 4671070 about?

The tribunal order states: The Tribunal determines that the tenancy premises is unlawful premises.

How much money was awarded in case 4671070?

Compensation: refund of total rent p…: $11,540.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Reimbursement Of Money Paid For The…: $5,050.00 awarded to tenant

What type of tenancy dispute was case 4671070?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4671070?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10258486-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4671070 about?

The tribunal order states: The Tribunal determines that the tenancy premises is unlawful premises.

How much money was awarded in case 4671070?

Compensation: refund of total rent p…: $11,540.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Reimbursement Of Money Paid For The…: $5,050.00 awarded to tenant

What type of tenancy dispute was case 4671070?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4671070?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10258486-Tribunal_Order_Redacted.pdf.

106 Russell Terrace, Berhampore, Wellington 6023 Tenancy Tribunal Case 4671070 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4671070 — net $21,910.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimbursement of money paid for the bond	$2,200.00	Reimbursement of money paid for the bond
Reimbursement of money paid for the fire	$5,050.00	Reimbursement of money paid for the fire
Exemplary damages: failure to lodge the bond	$500.00	failure to lodge the bond
Exemplary damages: failure to provide HHS information in the tenancy agreement	$250.00	failure to provide HHS information in the tenancy agreement
Exemplary damages: failure to provide insurance information	$250.00	failure to provide insurance information
Exemplary damages: demanding money for repairs	$600.00	demanding money for repairs
Exemplary damages: unlawful entry	$500.00	unlawful entry
Exemplary damages: breach of quiet enjoyment	$1,000.00	breach of quiet enjoyment
Compensation: refund of total rent paid less 30	$11,540.00	refund of total rent paid less 30
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$21,910.44
Total payable by Landlord to Tenant	$21,910.44

Claims and awards in Tenancy Tribunal application 4671070 — net $21,910.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimbursement of money paid for the bond	$2,200.00	Reimbursement of money paid for the bond
Reimbursement of money paid for the fire	$5,050.00	Reimbursement of money paid for the fire
Exemplary damages: failure to lodge the bond	$500.00	failure to lodge the bond
Exemplary damages: failure to provide HHS information in the tenancy agreement	$250.00	failure to provide HHS information in the tenancy agreement
Exemplary damages: failure to provide insurance information	$250.00	failure to provide insurance information
Exemplary damages: demanding money for repairs	$600.00	demanding money for repairs
Exemplary damages: unlawful entry	$500.00	unlawful entry
Exemplary damages: breach of quiet enjoyment	$1,000.00	breach of quiet enjoyment
Compensation: refund of total rent paid less 30	$11,540.00	refund of total rent paid less 30
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$21,910.44
Total payable by Landlord to Tenant	$21,910.44

Order

The Tribunal determines that the tenancy premises is unlawful premises.
Yongli Ma and Yixiong Lan must pay [The tenant/s] $21,910.44 immediately, calculated as shown in table below.
All other claims are dismissed.

Reasons

Both parties attended the hearing. One of the tenants and Mr Lan agreed to be joined as parties. The Tribunal was assisted by interpreters for both parties.
The tenants rented a downstairs flat from the landlords for around eight months from February to October in 2023. The landlords lived upstairs. There was a cooking fire in the downstairs flat in April and the kitchen was damaged. The landlords blamed the tenants for the fire and demanded they pay money to repair the damage. The landlords would not let the tenants move out, even though this was not a fixed term tenancy. Eventually the tenants sought legal advice and filed this application. They initially wanted the Tribunal to decide if they could leave the tenancy, but this was not necessary because they had already moved out by the time we had the first hearing.
I have not considered the tenants’ late claim for compensation because one of the rooms was too small to be used as a bedroom. This claim was not properly served on the landlords, and it would have been unfair to include it in the hearing.
The tenants have claimed compensation and exemplary damages, as well as the refund of the bond and reimbursement of the money they paid for repairs after the fire. On my own initiative I have considered if the premises are unlawful premises. The questions I have to decide include: • Was there a tenancy? • Were the landlords allowed to rent the downstairs flat to the tenants? • Were the tenants responsible for the fire? • Were the landlords allowed to recover money from the tenants after the fire? • Should the tenants get exemplary damages because of the bond, and the lack of information in the tenancy agreement? • Did the landlords enter the flat without notice or consent? • Was there a breach of quiet enjoyment? • Should I refund the rent to the tenants? • Were there rent breaches during the tenancy?

Was there a tenancy?

Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. Residential premises means 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.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the RTA does not apply. The landlords did not challenge the Tribunal’s authority, but they did ask the tenants to sign a flat sharing agreement part way through the tenancy, so I am addressing the issue of separate premises.
The parties signed a tenancy agreement in February just before they moved in. The tenancy agreement is a standard form agreement from Tenancy Services, but the landlords have only completed a minimum of information. Nonetheless the parties are named, rent and bond are agreed, and the agreement is signed. The tenants moved in and paid rent and a bond.
In August the tenants asked the landlords to complete the tenancy agreement properly because of a request from immigration. They forwarded the correct link for a tenancy agreement to the landlord. Instead, and for reasons that were not explained at the hearing, the landlords made the tenants complete a Flat/house sharing agreement. This agreement is typically used by flatmates and boarders and states at the top of the page that flatmates are not covered by the RTA.
Section 5(1)(n) RTA provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house- sharing agreements.
The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.
The High Court said the critical issue was whether the ‘premises’ referred to in section 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
The self-contained nature of the granny flat was decisive in Harding. In this case the flat in Russell Terrace is downstairs. There is separate access. There is no access to the upstairs from inside the flat. It is fully self contained because there is a kitchen, a bathroom, a laundry in a cupboard, a lounge, a bedroom and a smaller “half room”. I find the flat was separate premises and was not used principally a place of residence for the landlords. The exclusion set out in 5(1)(n) RTA does not apply here.
I find the first tenancy agreement the parties signed is the correct agreement. I note the signed flat/house sharing agreement is of no effect. I will take the increased rent and additional bond the landlords required when they signed the second agreement into account.

Were the landlords allowed to rent the downstairs flat to the tenants?

The Tribunal may declare premises to be unlawful residential premises. 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 77(2)(ac) and 78A(2) RTA.
The Tribunal may order the return of all rent paid by the tenant. 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.
The law relating to unlawful premises has been comprehensively considered in None v Anemax Property Management Limited [2021] NZTT Manukau 4296181, 4295174, a decision of the Tenancy Tribunal. I accept this decision is the correct application of the law and I have used much of the decision here.
Section 36 of the RTA 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) RTA 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.
In the present case the premises can be occupied for residential purposes, as the building as a whole has Council consent for residential use. However, an issue arises when owners divide a house into more than one household unit.
Section 45(1)(c) RTA requires consideration of whether then landlord has complied with the provisions of the Building Act 2004. Sections 114 and 115 of the Building Act deal with the change of use of consented buildings. Section 114 requires the owner to give notice of a change of use of the building, and makes failure to do so an offence. Section 115 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. 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 following uses in schedule 2 of the regulations are relevant for residential purposes: •SH (Sleeping Single Home) detached dwellings where people live as a single household or family, including attached self contained spaces such as granny flats when occupied by a member of the same family ... •SR (Sleeping Residential) attached and multi-unit residential dwellings, including household units attached to spaces or dwellings with the same or other uses, such as caretakers' flats, and residential accommodation above a shop multi-unit dwellings, flats, or apartments.
I asked the landlords twice to provide “proof from the Council that the landlord is allowed to rent the second dwelling under their house as a separate tenancy to a different family unit”. I advised the landlords that of they did not provide me with this information I could draw a negative inference. I have not been provided with an answer.
The landlords did ask the council to provide a copy of the consent and the compliance certificate for the flat alteration. They have provided me with information that shows a “downstairs flat” was properly consented. A code of compliance certificate was issued in 2008 for a “...one bedroom flat, with drive on, concrete ring foundation...” in an area that was a garage, wash house and storage area. The information from 2008 describes the whole dwelling as “SH (sleeping single home)”. The landlords said they pay one lot of rates for the house and the flat.
It is not clear from the documentation that the consent included the installation of a kitchen and a bathroom. I note an email from the landlords’ insurer dated 25 May 2023 which states that the: “...existing rangehood sits on a fire rated wall, but does not have any fire rated ducting, fire rated vent or fire rated cowling fitted to it. Therefore it does not appear to meet the requirements of the Building Code ... and any applicable Fire Regulations”.
The loss adjuster further noted that the laundry vent was not fire rated or compliant either. Accordingly, the insurer declined to cover the costs of replacing the rangehood.
It seems most likely to me that the flat does not comply with the Building Code. This is because: • The landlords did not provide an answer to my question for the Council • They are only paying one lot of rates • The best information I have from the council is that 106 Russell Terrace was classified as SH in 2008 • The landlords made the tenants sign a flat sharing agreement • Of the email from the insurer stating the kitchen and the laundry ventilation did not comply with the building code.
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 RTA. 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 flat is unlawful residential premises.

Were the tenants responsible for the fire?

The tenants said their tenancy changed after the cooking fire in April. The tenants were both home, one gaming and one distracted by a telephone call after she started cooking. The pot of oil on the stove caught fire and the tenants used the fire extinguisher provided by the landlord to put it out. The tenants thought the fire was contained, but the fire broke out again and it was much bigger. Again they managed to put it out, but there was damage to the stove, the rangehood, some cupboards, the bench top and other smoke damage in the room. The tenants said there were no smoke alarms. The fire service was not called.
The landlords have not filed an application, however I think it would be helpful for the parties if I determine whether the tenants were responsible for the cooking fire. This is because the tenants assumed responsibility for the fire and the relationship between the parties broke down.
Tenants are responsible for damage to the premises which occurs during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. See sections 40(2)(a), 41 and 49B RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. I find the fire damage was not intentional.
I am not persuaded the fire was careless either. It seems most likely to me the tenants were distracted rather than lacking care. They were alert to the fire and acted promptly to contain the damage. I find the fire was an accident, which means the tenants are not legally responsible for the resulting damage.

Were the landlords allowed to recover money from the tenants after the fire?

As said, the landlords demanded payment from the tenants after the fire. The demands were for money to make repairs. The tenants paid a total of $5,050 in the months after the fire. The tenants want the money reimbursed and exemplary damages because the landlords demanded payment in excess of the tenants’ liability.
The RTA states that a landlord cannot demand or accept payment of an amount that exceeds the tenant's liability under section 49B RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,800. See section 49D and Schedule 1A RTA.
Because the tenants had no liability under 49B, the landlords were not allowed to demand payment for repairs from the tenants. I find the landlords committed an unlawful act.
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) RTA.
As to intention, the landlords said they were not aware of the relevant law. I find this is not a reasonable excuse. They were running a business and they should have researched the law. There is plenty of information for landlords on websites. They could have got legal advice. They could have filed an application with the Tenancy Tribunal for compensation after the fire. They did none of these things, and I find that was intentional.
The effect on the tenants was increasing stress as the months passed, especially when the landlords would not let the tenants leave because they “owed money” for the repairs. They were students at the time and had to borrow money from their parents. It is in tenants’ interests that landlords do not require more of them than the RTA sets put, and there is public interest that landlords pay exemplary damages when there is a breach of the RTA. I allow exemplary damages in the amount of $600. This is at the lower end of the scale because I am not aware of similar orders against the landlords. Should the tenants get exemplary damages because of the bond, and the lack of information in the tenancy agreement?
It is agreed evidence the landlords did not lodge the bond with the Bond Centre. A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(1), (2) and Schedule 1A RTA.
Under section 13A(1CA) RTA landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations. It is agreed evidence the landlords did not do this. The RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement and the Tribunal may award exemplary damages up to $750.00. See section 13A(1F) and schedule 1A RTA.
There is a record of the tenants asking for a copy of the insurance policy in the months after the fire. This was important to them because the landlords did not provide the insurance information in the tenancy agreement, and were demanding money from tenants for repairs. It is agreed evidence the landlords did not provide a copy of the policy. The RTA states that landlords must provide a copy of the policy within a reasonable time if requested. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2B), 2C), (2D) and Schedule 1A RTA.
I find the landlords committed unlawful acts. The same rules apply for considering exemplary damages. For each breach the landlords submitted that they did not know the rule of law. Choosing not to research the applicable law is an intentional act. I find the landlords acted intentionally.
The effect on the tenants was stress, depression, and financial hardship. They still don’t have their bond back. It is in tenants’ interests that landlords lodge the bond with an independent third party and that insurance and HHS information is disclosed. There is public interest that landlords are penalised when they ignore the RTA. I allow exemplary damages in the amount of $500 for the bond breach and $250 for each of the disclosure breaches. Again, this is at the lower end of the scale because I am not aware of similar orders against the landlords.

The tenants claim the landlords entered the premises without consent or notice. Landlords may not enter the premises during the tenancy except with the tenants’ consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See sections 48(1) and (2) and (4)(a) and Schedule 1A RTA.
The tenants said the landlords always came into their flat without giving the notice required by the RTA. At the hearing I explained that if the tenants gave consent then the landlords could enter, even if no advance notice had been given.
However, the tenants did have a video taken on 29 August 2023 where one of the landlords entered the flat without notice or consent and refused to leave. From the video and the evidence given in the hearing it seems likely to me the landlords either did not know or did not care that there were rules about entry. The landlords only stopped entering the flat once the tenants got legal advice and after the police warned the landlords to comply with the RTA. I find the landlords committed an unlawful act.
The same rules for exemplary damages apply. Again, I find the landlords were responsible for investigating the relevant laws that apply to renting the flat. The landlords acted intentionally when they chose not to follow the RTA. The tenants said this confrontation on 29 August affected their health and their health only improved after they moved out. It is tenants’ interest that they can live peacefully in their rentals without fear of the landlord walking in unannounced, and there is public interest in landlord’s paying exemplary damages if there are breaches. I allow exemplary damages in the amount of $500 because I am not aware of similar orders.

Was there a breach of quiet enjoyment?

The tenants claim the landlord harassed them. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 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(2), (3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Black’s Law Dictionary defines harassment as Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
The tenants said the landlords made threats during the tenancy about cancelling their visa. They needed a letter from the landlords confirming they were living together for immigration purposes. There is a message from the landlords saying that if the tenants get a lawyer the visa letter will be cancelled. The tenants also asked the landlords to complete the original tenancy agreement and the landlords made them sign a flat/house sharing agreement instead, meaning the tenants were in doubt about whether they could apply to the Tenancy Tribunal. The flat sharing agreement even had a clause unlawfully increasing the rent by $50 a week because of “taxes”. Further, there are many messages from the landlords demanding money for repairs after the fire. I note these WeChat messages have been translated by the tenants, but the translation has not been challenged by the landlords.
The landlords submitted that they saw no evidence of stress. However, it seems most likely to me that there was a pattern of behaviour by the landlords that caused substantial emotional distress to the tenants. I find the landlords have committed an unlawful act.
The landlords acted intentionally because they should have known the law. One of the tenants was worried she would have a breakdown because she was really sick with a cough and could not get out of bed. Tenants should be able to live in their rented homes without harassment. There is public interest that these landlords pay exemplary damages. I allow $1000 in exemplary damages, at the lower end of the scale for the same reasons.

Should I refund the rent to the tenants?

As I have explained the Tribunal may order the return of all rent paid by the tenants if there is a finding the tenancy premises was unlawful premises. The Tribunal may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. See sections 78A(3)(a), (4) and (5) RTA.
Section 78A of the RTA was introduced in 2017 in response to two High Court decisions relating to the jurisdiction of the Tribunal to determine applications relating to unlawful residential premises. At the time of the introduction of the Bill the then Minister for Building and Constructions, the Hon Nick Smith, made reference to what he described as the “abhorrent” practice of renting out unconsented, noncompliant and unsafe properties to tenants. He noted that there should be capacity to hold landlords who rent unlawful properties to account, and to ensure that those people who attempt to rent out such properties are held accountable.
In None v Anemax Property Management Limited the Adjudicator considered that 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.
The Adjudicator decided that allowing the Tribunal the discretion to reduce the amount awarded to tenants under section 78A showed that Parliament intended there to be a distinction be drawn between premises that were unlawful on the basis of some type of regulatory technicality, but which were otherwise safe, healthy homes, and those properties which created risks to health and safety.
In the Anemax Property Management Limited case the Adjudicator decided that the amount of rent to be refunded should be reduced by around 30% to take into account the fact that the premises was consented for residential purposes and was insulated in accordance with the requirement of the Act. The tenant had also had the benefit of some utility from the occupation of the premises for a number of years.
As a starting point I find the rent paid for Russell Terrace should be refunded to the tenants. The best evidence I have is that the house was consented as a single dwelling. There is evidence the house does not have the proper fire rating and fire protection in the kitchen and the laundry cupboard. The information from the council is not clear about whether there has been building consent and code of compliance for the bathroom and the kitchen in the flat. It is possible there are other health and safety issues that I am unaware of. These tenants actually had a fire, and because the fire service was not called we will never know if the damage was worse because of the missing fire protection in the kitchen wall.
I find that I should deduct an amount to take into account the special circumstances of this case. The tenants had some benefit living in the flat. Their evidence was that they enjoyed living there until the fire. They had the benefit of shelter and somewhere to store their belongings. The house was consented for residential purposes and it looked tidy in the photos. I find that a 30% reduction in the refund of rent is appropriate. This finding means I have calculated all the rent paid during the tenancy and allowed a 70% refund to the tenants.
I am aware that the tenants claimed compensation because they were without a working kitchen for some time after the fire. There were other repairs as well. I have taken this into account in the refund of the rent.
I note there were clams for compensation for food and the costs of living in another house after the fire. These claims are not proved because the tenants have no proof of what they actually paid. In any event, I consider the return of the rent to be sufficient compensation for the inconvenience, stress, and the inevitable extra costs after the fire.
The tenants claimed the landlords breached the duty to provide working smoke alarms. The landlords said there is a compliant alarm, but there is no record of whether the landlords tested the alarm at the start of the tenancy. The tenants said the smoke alarm did not go off when they had the fire. I prefer the evidence of the tenants. However, I decline to make an additional order for compensation and have taken this into account in the refund of rent as well.
Finally, I note that during the hearing the tenants offered to pay their electricity bill for August. I have not made a deduction for this amount because of the repairs being carried out by the landlords after the fire, which used the tenants’ power.

Were there rent breaches during the tenancy?

The tenants claimed the landlords breached the RTA by not giving receipts for rent payments made during the tenancy. I note that receipts for rent are not required if the rent is paid into a bank account, so there was no breach here.
There were some cash payments for repairs, but I have already made an order for exemplary damages under section 49B RTA for this breach. I decline to make another award for not providing a receipt for a cash payment.
I find the landlord was not allowed to increase the rent during the 32 week tenancy because one rent increase is allowed every year. Where the rent in not increased in accordance with the RTA then the Tribunal can declare that there is no rent increase. The situation here is different because of the return of the rent for the unlawful premises. To decide that award I need to calculate the exact amount of money the tenants paid during the tenancy. This is what I have done, taking into account all the money the tenants paid for rent. Other orders
Because the tenants have substantially succeeded with the claim I have reimbursed the filing fee.
The tenants’ application for suppression is allowed because the tenants are the most successful party. The landlord does not get suppression because there is public interest in their names being published where there are breaches of the RTA.
I have deliberately published the address of the flat as a deterrent to other tenants.

Tenancy Tribunal case 4671070 — Exemplary damages at 106 Russell Terrace, Berhampore, Wellington 6023

At a glance

Tenancy Tribunal case 4671070 — Exemplary damages at 106 Russell Terrace, Berhampore, Wellington 6023

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was there a tenancy?

Were the landlords allowed to rent the downstairs flat to the tenants?

Were the tenants responsible for the fire?

Were the landlords allowed to recover money from the tenants after the fire?

Was there a breach of quiet enjoyment?

Should I refund the rent to the tenants?

Were there rent breaches during the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was there a tenancy?

Were the landlords allowed to rent the downstairs flat to the tenants?

Were the tenants responsible for the fire?

Were the landlords allowed to recover money from the tenants after the fire?

Was there a breach of quiet enjoyment?

Should I refund the rent to the tenants?

Were there rent breaches during the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was there a tenancy?

Were the landlords allowed to rent the downstairs flat to the tenants?

Were the tenants responsible for the fire?

Were the landlords allowed to recover money from the tenants after the fire?

Did the landlords enter the flat without notice or consent?

Was there a breach of quiet enjoyment?

Should I refund the rent to the tenants?

Were there rent breaches during the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was there a tenancy?

Were the landlords allowed to rent the downstairs flat to the tenants?

Were the tenants responsible for the fire?

Were the landlords allowed to recover money from the tenants after the fire?

Did the landlords enter the flat without notice or consent?

Was there a breach of quiet enjoyment?

Should I refund the rent to the tenants?

Were there rent breaches during the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions