What was the outcome of Tenancy Tribunal case 4699267?

The tribunal order states: Collett Realty Limited must pay Kate Carlisle $500.00 immediately, being

How much money was awarded in case 4699267?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4699267?

The primary dispute was Mould & damp. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Unit Titles, Boarding House.

Where can I read the official tribunal order for case 4699267?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10264870-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4699267?

The tribunal order states: Collett Realty Limited must pay Kate Carlisle $500.00 immediately, being

How much money was awarded in case 4699267?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4699267?

The primary dispute was Mould & damp. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Unit Titles, Boarding House.

Where can I read the official tribunal order for case 4699267?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10264870-Tenancy_Tribunal_Order.pdf.

Room 2, Unit/Flat 6, 159 Unsworth Drive, Unsworth Heights, Tenancy Tribunal Case 4699267 — Mould & damp

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Room 2, Unit/Flat 6, 159 Unsworth Drive, Unsworth Heights, Tenancy Tribunal Case 4699267 — Mould & damp | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4699267. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Claim types — money lines allowed on this order

Filing Fee

Order

Collett Realty Limited must pay Kate Carlisle $500.00 immediately, being exemplary damages for a breach of the landlord’s obligations around rent.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the tenant and landlord, although the landlord withdrew its claim during the hearing. I will set out the claims below.
Both parties appeared at the hearing today in the North Shore District Courthouse.

BACKGROUND

The premises are located in a complex of 27 units, and I understand that each unit has effectively the same design. That is the premises are over three levels, with the kitchen and lounge on the ground floor, and then two bedrooms each with their own ensuite on each of the two upper levels – meaning there are four bedrooms in each unit. The premises have been recently built, and there is no suggestion that the legal obligations around that build and consenting have not been complied with.
Importantly, the landlord rents each room in the complex under a separate tenancy agreement – a ‘room by room’ rental.
The landlord is Collett Realty Limited, and the sole tenant is Kate Carlisle. The tenancy was a fixed-term tenancy between 29 November 2022 and 28 February 2023. The tenancy ended at the expiry of that fixed term period.
When the premises were first rented by Ms Carlisle, she was renting a downstairs room that had a ranch slider door, that did not meet Ms Carlisle’s needs (as I will discuss further below). It was agreed then that Ms Carlisle would move into an upstairs room. But as far as the claims I will consider are concerned, nothing will turn on the room change, I accept there was a tenancy for both rooms.
It is plain that things have not gone well at this tenancy, and there has been considerable conflict between the tenant and property manager, there have been many things the parties have not agreed on.
During the tenancy, the tenant has made complaints to the Auckland City Council, Tenancy Service (MBIE) and Fire and Emergency New Zealand (FENZ).
The complex was inspected by the Tenancy Compliance and Investigation Team (TCIT) at Tenancy Services (MBIE). The investigators provided a report confirming that: All units / townhouses were identical and laid out in the same way. The inspected unit (17) met all requirements of the Healthy Homes Standards. ...no breaches were found of the RTA during the site visit and no complaints have been made to TCIT. The case can therefore be closed.
The Complaint to the Auckland City Council did receive traction for the tenant, as the Council issued the landlord a Notice to Fix (FTF). The Council report states: Observations. There are seven blocks of units, with each block being divided into separate 4 bedroom units with 3 floors. The ground floor (usually) contains kitchen, lounge laundry etc, the next 2 floors each have 4 bedrooms each with an En Suite bathroom. (P1) Each building was approved, inspected and issued with a CCC on the basis that there were 28 apartments (Building Use SR). (P2) However, each bedroom (4 per unit) is being rented out as studio units, changing the use of the building to SA (Sleeping Accommodation). (P3) The owner and letting agent were present and admitted to the above situation claiming they were not aware this arrangement changed the use of the building, although it seems there was no attempt to make enquiries regarding the change. Conclusions. There has been a change of use from Classified Use Multi-unit Dwelling, Building Use SR and fire risk group SH, to Classified Use Community Service, Building Use SA and Fire risk group SM. This is a change of use requiring more onerous requirements under the New Zealand Building Code, which require a Building Consent and possibly (depending on zone under AUP) a Resource Consent. This will trigger a Compliance Schedule when the CCC is issued, and an annual BWoF. Recommendations. Notification to the building owner by means of a NTF which should contain a statement to this effect.
The Council then issued a Notice to Fix (NTF). I Accept however that the landlord has applied for a determination from MBIE in relation to the Council’s assessment, and under section 183 of the Building Act 2004, the Council’s assessment is suspended until that determination is issued.
Ultimately at the end of the tenancy, both parties have filed applications with the Tribunal.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court 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.
The tenant seeks exemplary damages on a number of grounds. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct. Exemplary damages
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

TENANTS CLAIMS

Breach of the Healthy Homes Standards

The tenant states that the landlord has breached the Healthy Homes Standards (HHS) in relation to ventilation. The tenant states that her original room had a ranch slider door (no window), and it could not be locked in a partially open position. The point made by the tenant is that the room could not receive adequate ventilation and still be secure. The tenant says that she asked for a locking mechanism to be installed to allow fixed partial opening, but the landlord did not provide this. Analysis
The tenant states that the landlord has breached the Healthy Homes Standards in relation to the ventilation standard.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provides for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
The key provision in the HHS in relation to this dispute, is regulation 21. That requires that the landlord provide windows or doors that can open, the regulation is as follows: 21 Openable windows or external doors (1) Each habitable space in the premises must have 1 or more qualifying windows or doors. (2) The total openable area of the qualifying windows or doors in the habitable space must be at least 5% of the floor area of the habitable space. (3) A window, skylight, or door is a qualifying window or door if it— (a) opens to the outdoors; and (b) is designed and built in a way that allows it to remain fixed in the open position during normal occupation of the premises.
As I explained to the tenant at the hearing, in my view in order to comply with this regulation, the ranch slider needed to be designed and built in such a way, that the door could be opened to allow ventilation and stay open. I do not interpret this requirement as needing the door to be fixed or secured in a partially opened way to allow ventilation, and also to maintain security. It is important to recognise that the intention of the ventilation regulations, is to ensure that residential premises can be adequately ventilated. That means that doors and windows can be opened, to allow airflow. Interpreting regulation 21(3)(b) as meaning that the door needed to be fixed open, or to put that another way stay open, would be consistent with that overarching intention.
It is also relevant to note that the premises have been inspected by the Tenancy Compliance and Investigation Team (TCIT) at Tenancy Services (MBIE). The investigators provided a report confirming that: All units / townhouses were identical and laid out in the same way. The inspected unit (17) met all requirements of the Healthy Homes Standards.
It is manifest that the investigators at Tenancy Services did not see any breach of the ventilation requirement.
I am not persuaded that the door in the tenant’s first tenancy was anything other than a qualifying door for the HHS, meaning that no breach has been established. This claim must be dismissed. Unlawful residential premises
The tenant submits that the premises were unlawful and unsafe
The tenant states there were two fires in the wider complex (not her building), where extractor fans in the laundry caught fire. The tenant said this caused her to reflect on what would happen in her premises if there was a fire. The tenant states that because of how the premises were rented, where she cannot vet the other tenants, she cannot be sure they would be safe co-occupants of the building, and because the doors are locked, access becomes an issue. The tenant said there was no evacuation plan. The tenant said that because she was on a fixed-term tenancy, she felt trapped.
The tenant said that she raised a complaint with the Council and Fire and Emergency New Zealand, following which a NTF was issued on the basis of an unauthorised change of use of the dwelling, and to remove anything that was done without a building consent.
In response, the landlord states that a Code of Compliance has been issued to the premises, and no other building work has been undertaken beyond maintenance.
The landlord states there are limited cooking items in the rooms including a microwave, toaster and kettle.
The landlord states that the emergency services do have the access codes to the premises.
It is disputed that there is any necessity for a Building Warrant of Fitness.
The landlord submits that this is a ‘room by room’ tenancy, as recognised as lawful by MBIE.
The landlord also notes that the premises have been assessed by MBIE, and they have confirmed there is no breach of the RTA.
In relation to the NTF, it is submitted that there is an application for a declaration that there is no breach, and therefore until the determination is completed, there is no breach established. In any event, the landlord believes that the correct allocation to these premises is Sleeping Residential – its current class. Analysis
Broadly, the tenant submits that given the assessment of the Auckland City Council, and the NTF subsequently issued, the premises are unlawful residential premises, and therefore exemplary damages should be ordered, and a rent refund required.
Section 78A of the RTA deals with unlawful residential premises, and defines that term as follows: (2) For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
If the Tribunal determined that the premises were unlawful residential premises, then exemplary damages could be ordered, and a rent refund required.
I am not persuaded that these are unlawful residential premises for these reasons.
Firstly, I do not consider that section 78A(2)(a) has been met. This provision confirms that unlawful residential premises means premises that “cannot lawfully be occupied for residential purposes by [the tenant]”. That is not the case here. Clearly the premises have been consented for use as a residential dwelling, the tenant certainly could live in the dwelling for that purpose.
Secondly, I have been unable to understand the reasoning behind the approach taken by the Auckland City Council. On the evidence available, I cannot see that the landlord has done anything other than rent the bedrooms on a room-by-room basis. It seems that if the landlord rented the whole apartment to one tenant, who then took on three flatmates, that would not be an issue for the council, the only issue seems to be that there are four separate tenancy agreements for the same dwelling rather than one. I simply cannot see what risk or detriment the Council Inspectors see in this case.
There is no evidence that the landlord has undertaken any building work that would have required a building consent. I accept that locks were placed on the bedroom doors, but that was not to my knowledge building work requiring a consent. Furthermore, it is not uncommon that even in a flatting situation, that flatmates lock their doors.
I am also minded that room-by-room rentals are a reasonably common form of renting residential premises in New Zealand. If the approach taken by the Council was correct, then that would suggest that all such rentals would be illegal. That cannot be the correct. If such an outcome was intended, that would be a matter for Parliament to determine given its national significance.
But even if I were wrong in that view regarding the Council’s assessment, at this time there has been no breach established, because as submitted by the landlord, given a determination has been applied for around the Council’s findings, the Council assessment is suspended.
I am not persuaded by Ms Carlisle’s submissions that she was at increased risk because she could not pick her other co-tenants. When Ms Carlisle first rented the premises, she would have been aware of the arrangement with the room-by-room rental, so she has consented to any risk arising from the landlord picking the tenants for the other rooms.
Furthermore, there is no evidence that her co-tenants were living in the premises in a way that would be materially different to flatmates. A kitchen was provided for all occupants to use, and if someone elected to prepare food in their rooms they could do so whether they were a flatmate or co- tenant.
Even if I was wrong in my findings above, and this was an unlawful residential tenancy and therefore the landlord had committed an unlawful act, I would have declined to order exemplary damages. That is because I doubt that the landlord acted intentionally in any breach, and further it would not be just to make an order. That is because what the landlord has done here, renting the premises room-by-room, is a reasonably common form of renting residential premises in New Zealand. I have no reason to believe that the landlord did not consider they were acting lawfully, and it would not be just to order exemplary damages in these circumstances.
The tenant has not proven that the premises are unlawful residential premises, so this claim is dismissed. Locks (46(1) and (3)
The tenant states that there was no security stay on the ranch slider door. Analysis
Section 46 of the RTA relates to locks, and requires that: The landlord shall provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure.
The tenant does not dispute that if the ranch slider door was closed, it could be locked and would be secure, but her issue is that the door could not be locked in the partially open position as discussed under the ventilation claim above.
However, as I raised with the parties at the hearing, in my assessment section 46 does not require locks to be provided to keep a door partially opened, but where the reference to the premises being reasonably secure is made in the RTA, I interpret that to mean that the door could be locked shut.
Given I am satisfied that the door could be locked in the closed position, and would be secure, I find the landlord has complied with its obligations, meaning there is no breach of the requirements around locks, and therefore this application is dismissed. Unlawful entry
The tenant states that her tenancy agreement was for the bedroom, but she was able to use the facilities on the premises (the kitchen and lounge), but the landlord would come into that area without notice. The tenant confirmed that the landlord did not come into her bedroom, only the ‘common’ areas. The tenant considers that she should have had privacy in the premises meaning the landlord should not have entered without the necessary notice being first given.
The landlord states that the ‘common’ areas are used by the other tenants, and they do need to access those areas from time to time such as for cleaning and maintenance. The landlord states that they do give notice for entry to the bedrooms rented by the tenants separately.
The tenant considers that it would not be unreasonable to expect the landlord to give notice to the four tenants each time entry is needed. Analysis
There is no dispute between the parties in relation to the facts of this claim. That is, that the landlord would enter the ‘common’ parts of the dwelling from time to time without giving notice. The question is whether that is lawful.
Section 48 of the RTA relates to the landlord’s right to enter the premises and confirms that “The landlord shall not enter the premises during the currency of the tenancy agreement” unless the tenant consents to that entry, notice is given, or it is an emergency.
However, the problem for the tenant with this claim, is that section 48(7) includes a significant limitation when it says: In this section premises does not include land or facilities.
The term ‘facilities’ is defined in the interpretation section of the RTA as follows: facilities, in relation to a tenancy agreement (other than a boarding house tenancy agreement), includes all facilities provided by the landlord for the non- exclusive use and enjoyment of the tenant, otherwise than as part of the premises that are the subject of the agreement, such as the following: (a) any land or buildings intended for use for storage space or for the parking of motor vehicles: (b) laundry facilities: (c) cooking facilities: (d) lifts and stairways: (e) rubbish storage and rubbish disposal facilities: (f) toilet and washing facilities: (g) appliances for heating or cooling premises: (h) communication facilities: (i) recreational areas: (j) lawns, gardens, and outhouses
In this case, what the tenant has described in her concerns, relates to the common areas of the building, those are the areas she shares with the other tenants, or to put that another way, the areas which are non-exclusive to her. Those common areas fall into the definition of being ‘facilities’ and are excluded from the notice requirements under section 48.
The landlord does not need to obtain consent or give notice to enter the land or facilities comprising the tenancy, and therefore no breach arises for failing to give notice to enter those facilities. This claim must be dismissed. Quiet enjoyment
The tenant claimed exemplary damages on the grounds of her quiet enjoyment being breached, in relation to the approach and experience with the landlord.
However I understand the tenant accepted that there was no harassment from the landlord. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined 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.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment.
There is no doubt that things have not gone well at this tenancy, and there has been conflict between the parties. But I have seen no evidence of harassment as would be defined above. Therefore this claim has not been established, so must be dismissed. Rent breach
The tenant’s position is that the landlord has required that she pay rent more than two weeks in advance, and prior to the expiry of the period for which she has already paid.
The landlord says that rent two weeks in advance is required at the start of the tenancy, and accepted that its tenancy agreement was not as clear as it could be around the rent obligations. Analysis
Section 23 of the RTA relates to rent in advance and holds: 23 Rent in advance (1) A landlord shall not require the payment of any rent— (a) more than 2 weeks in advance; or (b) before the expiry of the period for which rent has been paid already.
The RTA confirms that if a landlord breaches that obligation, it commits an unlawful act.
The tenancy agreement in this case says: Rent shall be paid weekly in advance up to the termination of the tenancy...
The portion of the tenancy agreement setting out the tenant’s rent obligation is as follows:
There is nothing unusual with the landlord requiring rent in advance, that is the most common arrangement with rent payments in New Zealand.
There is a clear inconsistency in the tenancy agreement, in that the landlord says in two places that the rent was payable “weekly”, but then requires the tenant to pay rent in advance of $800.00.
I can see from the tenancy agreement above that the document was originally drafted with a rental of $400.00 per week, and the parties agreed that the rent should be $385.00, so the amount was amended accordingly. But the ‘rent in advance’ figure was not amended, so remained two weeks of rent in advance.
I have been provided with a rent ledger from both parties. That shows that at the start of the tenancy, the tenant paid $1,600.00 in bond and an initial payment of $800.00 in rent. I also note that the rental recorded as due in the landlord’s rent ledger was $385.00.
Putting to one side the weekly rental requirement, the maximum the landlord should have required the tenant to pay in advance at any one time, is 2 weeks of rent, which means the maximum rental should have been $750.00, but the landlord has charged the tenant $800.00 at the start of the tenancy, which is more than two weeks of rent. The landlord has breached its rent obligations.
Whether the landlord has required the tenant to pay rent for a period before the period for which payments had expired, is less clear. An argument could be made that because the tenant only needed to pay rent weekly, when the landlord required $800.00 of rent in advance, then the landlord was requiring just over one week of rent to be paid for a period beyond the first week that the tenant had already paid.
I have taken into consideration the factors set out in section 109, which are the factors I must consider with any claim for exemplary damages. I find that exemplary damages should be ordered for these reasons: a. I consider the breach was likely to have been intentional. The landlord is a large and professional landlord, and they will likely be aware of their obligations around rent. The landlord was most likely aware of the amounts required of the tenant from the tenancy agreement, and the amounts the tenant paid. b. The effect of the unlawful act is that the tenant has paid more to the landlord than she needed to do. c. There are strong interests for tenants, landlords and the public generally, that rent is required and paid as the RTA requires it. d. I consider it would be just to make an order in the circumstances.
The maximum level of exemplary damages that can be ordered for this breach is $1,500.00. In this case, I have determined that an order at 1/3 rd of the maximum would be a reasonable exemplary damages order. I consider that level would achieve the overarching purpose of ordering exemplary damages, and I cannot see any mitigating factors that would argue for a lesser order, or aggravating factors requiring a higher order. Refusal to allow minor changes
The tenant states that she asked the landlord for permission to bring a pantry into the kitchen because this sort of storage in the kitchen was lacking but that was refused. Further, the tenant wanted the bed removed, so she could put her smaller bed in her room. The tenant wanted somewhere to store the vacuum cleaner. Further, the tenant could not bring in furniture to the common room. The tenant states that when she asked for anything she was told ‘no’ and made to feel like a child.
In response, the landlord states that there was already considerable storage space in the kitchen, and further this is a shared area and not a secure space. There was no area to store the tenant’s bed. The landlord refers to advertisements for the premises (provided by the tenant), which refers to this as a furnished property. Further, it was discussed in advance of signing the premises that it was fully furnished, and this was accepted by the tenant. Analysis
Section 42A requires that a tenant obtain consent for certain fixtures, and confirms that: The landlord must not unreasonably withhold consent for a fixture, renovation, alteration, or addition.
In my assessment, this provision must be interpreted as meaning the tenancy premises, that is the tenant’s room. That was the only area of the building that the tenant had exclusive use over. For the remainder of the building, that comprised facilities that were shared with three other tenants.
As it relates to the tenant’s room, I cannot see any obligation the landlord had to remove the furniture in the room. The tenancy was rented as fully furnished, and that is included on the chattels list, which specifically records a ‘queen bed’. I cannot see any obligation the landlord had to remove that chattel. Strictly the tenant could have removed it into storage, but she would be responsible for returning it at the end of the tenancy, all at her own cost.
But even if I were wrong in my above assessment, and the facilities (lounge and kitchen) were included for the purpose of section 42A, I would have concluded that the reasons given by the landlord for refusing consent for the requested changes, seem reasonable. The tenant has not convinced me that there was inadequate storage in the kitchen, and it was not unreasonable to refuse the tenant permission to bring her own furniture into the common areas, which would mean that the other three tenants had the tenant’s furniture in the area they used. This claim has not been established, so is dismissed. Insurance information
The tenant states that the tenancy agreement did not include an insurance statement, only that ‘you can see it’. The tenant states that she was renting a bedroom, and should have had a policy to cover that. The tenant said she asked to see the policy
The tenant states that when a policy was requested, the tenant found the redacted version of the policy made it difficult to understand given it was so redacted.
The landlord states that the insurance policy is held on the basis that the premises are a body corporate (it is a legal requirement in unit titled premises), and the information that was redacted, is related to confidential information. Analysis
Section 13A sets out the requirement for tenancy agreements, and that requires that the agreement include an insurance statement: (2) The landlord must include in the tenancy agreement the following information about insurance of the premises: (a) if the premises are not insured, a statement that they are not insured; and (b) if the premises are insured, a statement— (i) setting out, for each insurance policy that is relevant to the ten‐ ant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii) informing the tenant that a copy of the policy is available to the tenant on request ...
The tenancy agreement includes the following statement:
I am entirely satisfied that the statement meets the requirements under section 13A(2).
Section 45 sets out the landlords responsibilities, and that includes an obligation to provide a copy of the insurance policy if the tenant requests it: (2B) The landlord of premises that are insured may at any time, and must within a reasonable time after receiving a request from the tenant for a copy of the insurance policy, provide to the tenant under a tenancy agreement a copy of each insurance policy that is relevant to the tenant’s liability for destruction of, or damage to, the premises.
In this case the landlord has provided a copy of the policy, but has redacted some information from it. The tenant has taken issue with that.
The point made by the landlord, is that the insurance policy is for the body corporate as a whole. That makes sense, because the Unit Titles Act 2010 does require the Body Corporate to hold insurance for the premises, and it is commonly seen that the only policy of insurance on premises such as this, is the policy the Body Corporate holds.
While the policy provided to the tenant has had some information redacted, I accept that information was confidential or not relevant. Or more particularly I consider the information included on the policy (not redacted) was the information that the tenant reasonably needed to obtain from a review of the policy, to determine the insurance cover as far as her tenancy is concerned. I cannot see a landlord breach here.
This application has not been established so is dismissed. Filing fee
Because the tenant has not been wholly or substantially successful in her application, reimbursement of the filing fee is declined.

LANDLORDS CLAIMS

Refund of HHS report cost

The landlord seeks $171 refund for a Healthy Homes Assessment. The landlord states that they tried to convince the tenant that the premises were HHS compliant, and this report was requested in the context of trying to prove the premises did meet the legal criteria.
At the hearing I indicated to the landlord, that I could not see any basis upon which the tenant would be liable for this cost. The landlord then requested that this claim be withdrawn - the withdrawal was accepted.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4699267. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Claim types — money lines allowed on this order

Filing Fee

Order

Collett Realty Limited must pay Kate Carlisle $500.00 immediately, being exemplary damages for a breach of the landlord’s obligations around rent.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the tenant and landlord, although the landlord withdrew its claim during the hearing. I will set out the claims below.
Both parties appeared at the hearing today in the North Shore District Courthouse.

BACKGROUND

The premises are located in a complex of 27 units, and I understand that each unit has effectively the same design. That is the premises are over three levels, with the kitchen and lounge on the ground floor, and then two bedrooms each with their own ensuite on each of the two upper levels – meaning there are four bedrooms in each unit. The premises have been recently built, and there is no suggestion that the legal obligations around that build and consenting have not been complied with.
Importantly, the landlord rents each room in the complex under a separate tenancy agreement – a ‘room by room’ rental.
The landlord is Collett Realty Limited, and the sole tenant is Kate Carlisle. The tenancy was a fixed-term tenancy between 29 November 2022 and 28 February 2023. The tenancy ended at the expiry of that fixed term period.
When the premises were first rented by Ms Carlisle, she was renting a downstairs room that had a ranch slider door, that did not meet Ms Carlisle’s needs (as I will discuss further below). It was agreed then that Ms Carlisle would move into an upstairs room. But as far as the claims I will consider are concerned, nothing will turn on the room change, I accept there was a tenancy for both rooms.
It is plain that things have not gone well at this tenancy, and there has been considerable conflict between the tenant and property manager, there have been many things the parties have not agreed on.
During the tenancy, the tenant has made complaints to the Auckland City Council, Tenancy Service (MBIE) and Fire and Emergency New Zealand (FENZ).
The complex was inspected by the Tenancy Compliance and Investigation Team (TCIT) at Tenancy Services (MBIE). The investigators provided a report confirming that: All units / townhouses were identical and laid out in the same way. The inspected unit (17) met all requirements of the Healthy Homes Standards. ...no breaches were found of the RTA during the site visit and no complaints have been made to TCIT. The case can therefore be closed.
The Complaint to the Auckland City Council did receive traction for the tenant, as the Council issued the landlord a Notice to Fix (FTF). The Council report states: Observations. There are seven blocks of units, with each block being divided into separate 4 bedroom units with 3 floors. The ground floor (usually) contains kitchen, lounge laundry etc, the next 2 floors each have 4 bedrooms each with an En Suite bathroom. (P1) Each building was approved, inspected and issued with a CCC on the basis that there were 28 apartments (Building Use SR). (P2) However, each bedroom (4 per unit) is being rented out as studio units, changing the use of the building to SA (Sleeping Accommodation). (P3) The owner and letting agent were present and admitted to the above situation claiming they were not aware this arrangement changed the use of the building, although it seems there was no attempt to make enquiries regarding the change. Conclusions. There has been a change of use from Classified Use Multi-unit Dwelling, Building Use SR and fire risk group SH, to Classified Use Community Service, Building Use SA and Fire risk group SM. This is a change of use requiring more onerous requirements under the New Zealand Building Code, which require a Building Consent and possibly (depending on zone under AUP) a Resource Consent. This will trigger a Compliance Schedule when the CCC is issued, and an annual BWoF. Recommendations. Notification to the building owner by means of a NTF which should contain a statement to this effect.
The Council then issued a Notice to Fix (NTF). I Accept however that the landlord has applied for a determination from MBIE in relation to the Council’s assessment, and under section 183 of the Building Act 2004, the Council’s assessment is suspended until that determination is issued.
Ultimately at the end of the tenancy, both parties have filed applications with the Tribunal.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court 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.
The tenant seeks exemplary damages on a number of grounds. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct. Exemplary damages
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

TENANTS CLAIMS

Breach of the Healthy Homes Standards

The tenant states that the landlord has breached the Healthy Homes Standards (HHS) in relation to ventilation. The tenant states that her original room had a ranch slider door (no window), and it could not be locked in a partially open position. The point made by the tenant is that the room could not receive adequate ventilation and still be secure. The tenant says that she asked for a locking mechanism to be installed to allow fixed partial opening, but the landlord did not provide this. Analysis
The tenant states that the landlord has breached the Healthy Homes Standards in relation to the ventilation standard.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provides for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
The key provision in the HHS in relation to this dispute, is regulation 21. That requires that the landlord provide windows or doors that can open, the regulation is as follows: 21 Openable windows or external doors (1) Each habitable space in the premises must have 1 or more qualifying windows or doors. (2) The total openable area of the qualifying windows or doors in the habitable space must be at least 5% of the floor area of the habitable space. (3) A window, skylight, or door is a qualifying window or door if it— (a) opens to the outdoors; and (b) is designed and built in a way that allows it to remain fixed in the open position during normal occupation of the premises.
As I explained to the tenant at the hearing, in my view in order to comply with this regulation, the ranch slider needed to be designed and built in such a way, that the door could be opened to allow ventilation and stay open. I do not interpret this requirement as needing the door to be fixed or secured in a partially opened way to allow ventilation, and also to maintain security. It is important to recognise that the intention of the ventilation regulations, is to ensure that residential premises can be adequately ventilated. That means that doors and windows can be opened, to allow airflow. Interpreting regulation 21(3)(b) as meaning that the door needed to be fixed open, or to put that another way stay open, would be consistent with that overarching intention.
It is also relevant to note that the premises have been inspected by the Tenancy Compliance and Investigation Team (TCIT) at Tenancy Services (MBIE). The investigators provided a report confirming that: All units / townhouses were identical and laid out in the same way. The inspected unit (17) met all requirements of the Healthy Homes Standards.
It is manifest that the investigators at Tenancy Services did not see any breach of the ventilation requirement.
I am not persuaded that the door in the tenant’s first tenancy was anything other than a qualifying door for the HHS, meaning that no breach has been established. This claim must be dismissed. Unlawful residential premises
The tenant submits that the premises were unlawful and unsafe
The tenant states there were two fires in the wider complex (not her building), where extractor fans in the laundry caught fire. The tenant said this caused her to reflect on what would happen in her premises if there was a fire. The tenant states that because of how the premises were rented, where she cannot vet the other tenants, she cannot be sure they would be safe co-occupants of the building, and because the doors are locked, access becomes an issue. The tenant said there was no evacuation plan. The tenant said that because she was on a fixed-term tenancy, she felt trapped.
The tenant said that she raised a complaint with the Council and Fire and Emergency New Zealand, following which a NTF was issued on the basis of an unauthorised change of use of the dwelling, and to remove anything that was done without a building consent.
In response, the landlord states that a Code of Compliance has been issued to the premises, and no other building work has been undertaken beyond maintenance.
The landlord states there are limited cooking items in the rooms including a microwave, toaster and kettle.
The landlord states that the emergency services do have the access codes to the premises.
It is disputed that there is any necessity for a Building Warrant of Fitness.
The landlord submits that this is a ‘room by room’ tenancy, as recognised as lawful by MBIE.
The landlord also notes that the premises have been assessed by MBIE, and they have confirmed there is no breach of the RTA.
In relation to the NTF, it is submitted that there is an application for a declaration that there is no breach, and therefore until the determination is completed, there is no breach established. In any event, the landlord believes that the correct allocation to these premises is Sleeping Residential – its current class. Analysis
Broadly, the tenant submits that given the assessment of the Auckland City Council, and the NTF subsequently issued, the premises are unlawful residential premises, and therefore exemplary damages should be ordered, and a rent refund required.
Section 78A of the RTA deals with unlawful residential premises, and defines that term as follows: (2) For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
If the Tribunal determined that the premises were unlawful residential premises, then exemplary damages could be ordered, and a rent refund required.
I am not persuaded that these are unlawful residential premises for these reasons.
Firstly, I do not consider that section 78A(2)(a) has been met. This provision confirms that unlawful residential premises means premises that “cannot lawfully be occupied for residential purposes by [the tenant]”. That is not the case here. Clearly the premises have been consented for use as a residential dwelling, the tenant certainly could live in the dwelling for that purpose.
Secondly, I have been unable to understand the reasoning behind the approach taken by the Auckland City Council. On the evidence available, I cannot see that the landlord has done anything other than rent the bedrooms on a room-by-room basis. It seems that if the landlord rented the whole apartment to one tenant, who then took on three flatmates, that would not be an issue for the council, the only issue seems to be that there are four separate tenancy agreements for the same dwelling rather than one. I simply cannot see what risk or detriment the Council Inspectors see in this case.
There is no evidence that the landlord has undertaken any building work that would have required a building consent. I accept that locks were placed on the bedroom doors, but that was not to my knowledge building work requiring a consent. Furthermore, it is not uncommon that even in a flatting situation, that flatmates lock their doors.
I am also minded that room-by-room rentals are a reasonably common form of renting residential premises in New Zealand. If the approach taken by the Council was correct, then that would suggest that all such rentals would be illegal. That cannot be the correct. If such an outcome was intended, that would be a matter for Parliament to determine given its national significance.
But even if I were wrong in that view regarding the Council’s assessment, at this time there has been no breach established, because as submitted by the landlord, given a determination has been applied for around the Council’s findings, the Council assessment is suspended.
I am not persuaded by Ms Carlisle’s submissions that she was at increased risk because she could not pick her other co-tenants. When Ms Carlisle first rented the premises, she would have been aware of the arrangement with the room-by-room rental, so she has consented to any risk arising from the landlord picking the tenants for the other rooms.
Furthermore, there is no evidence that her co-tenants were living in the premises in a way that would be materially different to flatmates. A kitchen was provided for all occupants to use, and if someone elected to prepare food in their rooms they could do so whether they were a flatmate or co- tenant.
Even if I was wrong in my findings above, and this was an unlawful residential tenancy and therefore the landlord had committed an unlawful act, I would have declined to order exemplary damages. That is because I doubt that the landlord acted intentionally in any breach, and further it would not be just to make an order. That is because what the landlord has done here, renting the premises room-by-room, is a reasonably common form of renting residential premises in New Zealand. I have no reason to believe that the landlord did not consider they were acting lawfully, and it would not be just to order exemplary damages in these circumstances.
The tenant has not proven that the premises are unlawful residential premises, so this claim is dismissed. Locks (46(1) and (3)
The tenant states that there was no security stay on the ranch slider door. Analysis
Section 46 of the RTA relates to locks, and requires that: The landlord shall provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure.
The tenant does not dispute that if the ranch slider door was closed, it could be locked and would be secure, but her issue is that the door could not be locked in the partially open position as discussed under the ventilation claim above.
However, as I raised with the parties at the hearing, in my assessment section 46 does not require locks to be provided to keep a door partially opened, but where the reference to the premises being reasonably secure is made in the RTA, I interpret that to mean that the door could be locked shut.
Given I am satisfied that the door could be locked in the closed position, and would be secure, I find the landlord has complied with its obligations, meaning there is no breach of the requirements around locks, and therefore this application is dismissed. Unlawful entry
The tenant states that her tenancy agreement was for the bedroom, but she was able to use the facilities on the premises (the kitchen and lounge), but the landlord would come into that area without notice. The tenant confirmed that the landlord did not come into her bedroom, only the ‘common’ areas. The tenant considers that she should have had privacy in the premises meaning the landlord should not have entered without the necessary notice being first given.
The landlord states that the ‘common’ areas are used by the other tenants, and they do need to access those areas from time to time such as for cleaning and maintenance. The landlord states that they do give notice for entry to the bedrooms rented by the tenants separately.
The tenant considers that it would not be unreasonable to expect the landlord to give notice to the four tenants each time entry is needed. Analysis
There is no dispute between the parties in relation to the facts of this claim. That is, that the landlord would enter the ‘common’ parts of the dwelling from time to time without giving notice. The question is whether that is lawful.
Section 48 of the RTA relates to the landlord’s right to enter the premises and confirms that “The landlord shall not enter the premises during the currency of the tenancy agreement” unless the tenant consents to that entry, notice is given, or it is an emergency.
However, the problem for the tenant with this claim, is that section 48(7) includes a significant limitation when it says: In this section premises does not include land or facilities.
The term ‘facilities’ is defined in the interpretation section of the RTA as follows: facilities, in relation to a tenancy agreement (other than a boarding house tenancy agreement), includes all facilities provided by the landlord for the non- exclusive use and enjoyment of the tenant, otherwise than as part of the premises that are the subject of the agreement, such as the following: (a) any land or buildings intended for use for storage space or for the parking of motor vehicles: (b) laundry facilities: (c) cooking facilities: (d) lifts and stairways: (e) rubbish storage and rubbish disposal facilities: (f) toilet and washing facilities: (g) appliances for heating or cooling premises: (h) communication facilities: (i) recreational areas: (j) lawns, gardens, and outhouses
In this case, what the tenant has described in her concerns, relates to the common areas of the building, those are the areas she shares with the other tenants, or to put that another way, the areas which are non-exclusive to her. Those common areas fall into the definition of being ‘facilities’ and are excluded from the notice requirements under section 48.
The landlord does not need to obtain consent or give notice to enter the land or facilities comprising the tenancy, and therefore no breach arises for failing to give notice to enter those facilities. This claim must be dismissed. Quiet enjoyment
The tenant claimed exemplary damages on the grounds of her quiet enjoyment being breached, in relation to the approach and experience with the landlord.
However I understand the tenant accepted that there was no harassment from the landlord. Analysis
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined 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.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment.
There is no doubt that things have not gone well at this tenancy, and there has been conflict between the parties. But I have seen no evidence of harassment as would be defined above. Therefore this claim has not been established, so must be dismissed. Rent breach
The tenant’s position is that the landlord has required that she pay rent more than two weeks in advance, and prior to the expiry of the period for which she has already paid.
The landlord says that rent two weeks in advance is required at the start of the tenancy, and accepted that its tenancy agreement was not as clear as it could be around the rent obligations. Analysis
Section 23 of the RTA relates to rent in advance and holds: 23 Rent in advance (1) A landlord shall not require the payment of any rent— (a) more than 2 weeks in advance; or (b) before the expiry of the period for which rent has been paid already.
The RTA confirms that if a landlord breaches that obligation, it commits an unlawful act.
The tenancy agreement in this case says: Rent shall be paid weekly in advance up to the termination of the tenancy...
The portion of the tenancy agreement setting out the tenant’s rent obligation is as follows:
There is nothing unusual with the landlord requiring rent in advance, that is the most common arrangement with rent payments in New Zealand.
There is a clear inconsistency in the tenancy agreement, in that the landlord says in two places that the rent was payable “weekly”, but then requires the tenant to pay rent in advance of $800.00.
I can see from the tenancy agreement above that the document was originally drafted with a rental of $400.00 per week, and the parties agreed that the rent should be $385.00, so the amount was amended accordingly. But the ‘rent in advance’ figure was not amended, so remained two weeks of rent in advance.
I have been provided with a rent ledger from both parties. That shows that at the start of the tenancy, the tenant paid $1,600.00 in bond and an initial payment of $800.00 in rent. I also note that the rental recorded as due in the landlord’s rent ledger was $385.00.
Putting to one side the weekly rental requirement, the maximum the landlord should have required the tenant to pay in advance at any one time, is 2 weeks of rent, which means the maximum rental should have been $750.00, but the landlord has charged the tenant $800.00 at the start of the tenancy, which is more than two weeks of rent. The landlord has breached its rent obligations.
Whether the landlord has required the tenant to pay rent for a period before the period for which payments had expired, is less clear. An argument could be made that because the tenant only needed to pay rent weekly, when the landlord required $800.00 of rent in advance, then the landlord was requiring just over one week of rent to be paid for a period beyond the first week that the tenant had already paid.
I have taken into consideration the factors set out in section 109, which are the factors I must consider with any claim for exemplary damages. I find that exemplary damages should be ordered for these reasons: a. I consider the breach was likely to have been intentional. The landlord is a large and professional landlord, and they will likely be aware of their obligations around rent. The landlord was most likely aware of the amounts required of the tenant from the tenancy agreement, and the amounts the tenant paid. b. The effect of the unlawful act is that the tenant has paid more to the landlord than she needed to do. c. There are strong interests for tenants, landlords and the public generally, that rent is required and paid as the RTA requires it. d. I consider it would be just to make an order in the circumstances.
The maximum level of exemplary damages that can be ordered for this breach is $1,500.00. In this case, I have determined that an order at 1/3 rd of the maximum would be a reasonable exemplary damages order. I consider that level would achieve the overarching purpose of ordering exemplary damages, and I cannot see any mitigating factors that would argue for a lesser order, or aggravating factors requiring a higher order. Refusal to allow minor changes
The tenant states that she asked the landlord for permission to bring a pantry into the kitchen because this sort of storage in the kitchen was lacking but that was refused. Further, the tenant wanted the bed removed, so she could put her smaller bed in her room. The tenant wanted somewhere to store the vacuum cleaner. Further, the tenant could not bring in furniture to the common room. The tenant states that when she asked for anything she was told ‘no’ and made to feel like a child.
In response, the landlord states that there was already considerable storage space in the kitchen, and further this is a shared area and not a secure space. There was no area to store the tenant’s bed. The landlord refers to advertisements for the premises (provided by the tenant), which refers to this as a furnished property. Further, it was discussed in advance of signing the premises that it was fully furnished, and this was accepted by the tenant. Analysis
Section 42A requires that a tenant obtain consent for certain fixtures, and confirms that: The landlord must not unreasonably withhold consent for a fixture, renovation, alteration, or addition.
In my assessment, this provision must be interpreted as meaning the tenancy premises, that is the tenant’s room. That was the only area of the building that the tenant had exclusive use over. For the remainder of the building, that comprised facilities that were shared with three other tenants.
As it relates to the tenant’s room, I cannot see any obligation the landlord had to remove the furniture in the room. The tenancy was rented as fully furnished, and that is included on the chattels list, which specifically records a ‘queen bed’. I cannot see any obligation the landlord had to remove that chattel. Strictly the tenant could have removed it into storage, but she would be responsible for returning it at the end of the tenancy, all at her own cost.
But even if I were wrong in my above assessment, and the facilities (lounge and kitchen) were included for the purpose of section 42A, I would have concluded that the reasons given by the landlord for refusing consent for the requested changes, seem reasonable. The tenant has not convinced me that there was inadequate storage in the kitchen, and it was not unreasonable to refuse the tenant permission to bring her own furniture into the common areas, which would mean that the other three tenants had the tenant’s furniture in the area they used. This claim has not been established, so is dismissed. Insurance information
The tenant states that the tenancy agreement did not include an insurance statement, only that ‘you can see it’. The tenant states that she was renting a bedroom, and should have had a policy to cover that. The tenant said she asked to see the policy
The tenant states that when a policy was requested, the tenant found the redacted version of the policy made it difficult to understand given it was so redacted.
The landlord states that the insurance policy is held on the basis that the premises are a body corporate (it is a legal requirement in unit titled premises), and the information that was redacted, is related to confidential information. Analysis
Section 13A sets out the requirement for tenancy agreements, and that requires that the agreement include an insurance statement: (2) The landlord must include in the tenancy agreement the following information about insurance of the premises: (a) if the premises are not insured, a statement that they are not insured; and (b) if the premises are insured, a statement— (i) setting out, for each insurance policy that is relevant to the ten‐ ant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii) informing the tenant that a copy of the policy is available to the tenant on request ...
The tenancy agreement includes the following statement:
I am entirely satisfied that the statement meets the requirements under section 13A(2).
Section 45 sets out the landlords responsibilities, and that includes an obligation to provide a copy of the insurance policy if the tenant requests it: (2B) The landlord of premises that are insured may at any time, and must within a reasonable time after receiving a request from the tenant for a copy of the insurance policy, provide to the tenant under a tenancy agreement a copy of each insurance policy that is relevant to the tenant’s liability for destruction of, or damage to, the premises.
In this case the landlord has provided a copy of the policy, but has redacted some information from it. The tenant has taken issue with that.
The point made by the landlord, is that the insurance policy is for the body corporate as a whole. That makes sense, because the Unit Titles Act 2010 does require the Body Corporate to hold insurance for the premises, and it is commonly seen that the only policy of insurance on premises such as this, is the policy the Body Corporate holds.
While the policy provided to the tenant has had some information redacted, I accept that information was confidential or not relevant. Or more particularly I consider the information included on the policy (not redacted) was the information that the tenant reasonably needed to obtain from a review of the policy, to determine the insurance cover as far as her tenancy is concerned. I cannot see a landlord breach here.
This application has not been established so is dismissed. Filing fee
Because the tenant has not been wholly or substantially successful in her application, reimbursement of the filing fee is declined.

LANDLORDS CLAIMS

Refund of HHS report cost

The landlord seeks $171 refund for a Healthy Homes Assessment. The landlord states that they tried to convince the tenant that the premises were HHS compliant, and this report was requested in the context of trying to prove the premises did meet the legal criteria.
At the hearing I indicated to the landlord, that I could not see any basis upon which the tenant would be liable for this cost. The landlord then requested that this claim be withdrawn - the withdrawal was accepted.

Tenancy Tribunal case 4699267 — Mould & damp at Room 2, Unit/Flat 6, 159 Unsworth Drive, Unsworth Heights,

Tenancy Tribunal case 4699267 — Mould & damp at Room 2, Unit/Flat 6, 159 Unsworth Drive, Unsworth Heights,

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

LANDLORDS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

LANDLORDS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions