What was Tenancy Tribunal case 4731511 about?

The tribunal order states: Jing(Lisa) Li must pay [The tenant/s] $1,970.44 immediately, calculated as

How much money was awarded in case 4731511?

Compensation: Unlawful residential r…: $950.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4731511?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4731511?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10545029-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4731511 about?

The tribunal order states: Jing(Lisa) Li must pay [The tenant/s] $1,970.44 immediately, calculated as

How much money was awarded in case 4731511?

Compensation: Unlawful residential r…: $950.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4731511?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4731511?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10545029-Tribunal_Order_Redacted.pdf.

86C Kelman Road, Kelston, Auckland 0602 Tenancy Tribunal Case 4731511 — Healthy homes

Claims and awards in Tenancy Tribunal application 4731511 — net $1,970.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful residential rent refund	$950.00	Unlawful residential rent refund
Exemplary damages: Healthy Homes standards	$1,000.00	Healthy Homes standards
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,970.44
Total payable by Landlord to Tenant	$1,970.44

Order

Jing(Lisa) Li must pay [The tenant/s] $1,970.44 immediately, calculated as shown in table below:
It is declared that the premises are unlawful residential premises. Section 78A Residential Tenancies Act 1986 (“RTA”).

Reasons

Both parties attended the hearing. They both had the assistance of a mandarin interpreter.
The tenancy began on 18 June 2023 and ended on 29 October 2023.
The tenant applied for a claim in relation to the Healthy Homes standards and for compensation. The tenant raised the issue of whether the premises are legally able to be tenanted.
The hearing had been set down for 27 March 2024 but was adjourned as the interpreter did not attend. The Tribunal made directions in the order adjourning the hearing. Those directions were that the evidence needed to be translated in to English before the next hearing and that the landlord file evidence that the premises could be tenanted separately from the landlord’s premises. Unlawful residential premises
The Tribunal may declare premises to be unlawful residential premises. See section 77(2)(ac) Residential Tenancies Act 1986. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.
If the landlord has applied for termination for rent arrears, and the Tribunal declares the residential tenancy to be unlawful, the Tribunal may order termination, but it is not required to do so. See section 78A(3)(b) RTA.
It is necessary to consider whether the premises can be occupied as a separate household unit. The landlord produced a floorplan of the entire premises. The tenant occupied part of the downstairs area which included two bedrooms, a bathroom, a family room and a kitchenette which in the floorplan is referred to as a pantry. The landlord occupied the remaining of the downstairs area and the entire upstairs area.
There are two doors between the tenant’s area and the landlord’s area. One door is in the pantry and the other is in the tenant’s family room which leads to the landlord’s kitchen.
The floorplan shows that this residence was originally intended to be one premises. The two doors have apparently been locked and shelving units are in front of them on the tenant’s side. The tenant said that the landlord locked the doors and they do not have keys for the doors.
The unit occupied by the tenant is clearly a residential premises, in that it is a part of the premises, used for occupation as a place of residence. Put simply, it was intended that the tenant live in the premises, and the tenant did, in fact, live there. The question is whether the premises can be lawfully occupied as residential premises, either generally or for the particular residential purposes for which the tenant occupied it, and whether the landlord’s failure to comply with either section 35 or section 45(1)(c) caused or contributed to the unlawfulness of the occupation.
In the present case, the particular purpose is the occupation of the premises as a second household unit, separate to the landlord’s part of the building. While the premises can be occupied as the building as a whole has council consent for residential use, an issue arises when looking at the division of the premises into two separate household units.
Section 45(1)(c) provides 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.
One of those enactments is the Building Act 2004. Sections 114 and 115 of the Building Act deals with the change of use of consented buildings. Section 115 states that where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, the territorial authority (in this case Auckland Council) must give the owner written notice that it 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.
No evidence was submitted to establish that the landlord had consent for the tenant’s area downstairs to be used as a separate premise and therefore no consent for the change of use from one dwelling to two dwellings.
I consider that the landlord has not complied with the Building Act, and consequently has failed to comply with section 45(1)(c) of the Act. The failure to obtain consent to divide the premises into two household units makes occupation of it in that particular manner, unlawful. Accordingly, the premises is an unlawful residential premises.
Where it finds unlawful residential premises section 78A(4) applies. Section 78A(4) states; The Tribunal may order the landlord to pay the tenant – (i)The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful premises; or (ii)An amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.
I consider that section 78A(4)(ii) should apply to this case because the tenant has had some benefit from living at the property.
I must carefully weigh what amount of rent it is fair to deduct. Other than considering the nature of the premises, “the special circumstances” that I must have regard to are not stated within the RTA. However other Tribunal decisions have weighed the following factors: (a) The landlord’s motivation for renting the property, and their conduct during the tenancy; (b) The tenant’s motivation for renting the property and bringing the claim, and the length of time she lived in the property; (c) The benefits the landlord received in renting the property; (d) The benefits the tenant received in renting the property; (e) The seriousness of the regulatory breaches making the premises unlawful; (f) Any other breaches by the landlord; (g) Any detriment or loss the tenant suffered; (h) The purpose of s78A in ensuring landlords do not unfairly profit from unlawful premises; (i) The public interest in discouraging unlawful tenancies; (j) Any other compensation or exemplary damages that are ordered.
After consideration of the special circumstances, I consider that a rent refund of 10% is reasonable. The weekly rent was $500.00 and the tenancy lasted for 19 weeks. At $50.00 (10%) per week the refund amounts to $950.00. Healthy Homes standards
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Heng Ren and Meng Xin considers that the landlord has failed to comply with the HHS heating standard, insulation standard, and the moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 120 days of any new or renewed tenancy between 28 August 2022 and 2 March 2024.
The compliance date for this tenancy was 17 October 2023.
The landlord did not provide any evidence to prove that the premises complies with the Healthy Homes standards. I consider that the landlord has breached this standard.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The tenant complained of a significant issue with mould at the premises. Several photographs were produced showing damage to clothing and shoes. The tenant also believes that the mould caused skin irritations.
At the hearing the landlord said that she kept reminding the tenant to open the window and to get a dehumidifier. She said that the tenant did not open the windows. She said that there had been no problems with previous tenants. In respect of the heating the landlord said that there was agreement that the landlord would not supply a heater, and this was recorded in the Tenancy Agreement. The landlord said that a heat pump was ordered by the tenant asked for it to be installed after the tenancy ended.
At paragraph 7 of the translated version of the Tenancy Agreement it states that Party A does not provide AC (air-conditioner), dehumidifier, oven or dryer.
While this is a term of the Tenancy Agreement the Residential Tenancies Act states at section 11 that agreements which are inconsistent with the Act shall be of no effect. This means that despite what it says in the agreement, the landlord should still have complied with the legislation in respect of the Healthy Homes standards.
I accept that the landlord’s failure to comply with the Healthy Homes standards has had a detrimental effect on the tenant. The landlord was aware of the mould and had commented to the tenant about it but did not carry out any investigation as to what caused the mould because she believed that the tenant was at fault.
The landlord was aware of the Healthy Homes standards. The landlord cannot rely on the tenant not wanting the heat pump installed as a reason for it not being installed. It is the responsibility of the landlord.
Taking account of the evidence produced I consider that an award of $1,000.00, the equivalent of two weeks rent, is reasonable.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4731511 — net $1,970.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful residential rent refund	$950.00	Unlawful residential rent refund
Exemplary damages: Healthy Homes standards	$1,000.00	Healthy Homes standards
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,970.44
Total payable by Landlord to Tenant	$1,970.44

Order

Jing(Lisa) Li must pay [The tenant/s] $1,970.44 immediately, calculated as shown in table below:
It is declared that the premises are unlawful residential premises. Section 78A Residential Tenancies Act 1986 (“RTA”).

Reasons

Both parties attended the hearing. They both had the assistance of a mandarin interpreter.
The tenancy began on 18 June 2023 and ended on 29 October 2023.
The tenant applied for a claim in relation to the Healthy Homes standards and for compensation. The tenant raised the issue of whether the premises are legally able to be tenanted.
The hearing had been set down for 27 March 2024 but was adjourned as the interpreter did not attend. The Tribunal made directions in the order adjourning the hearing. Those directions were that the evidence needed to be translated in to English before the next hearing and that the landlord file evidence that the premises could be tenanted separately from the landlord’s premises. Unlawful residential premises
The Tribunal may declare premises to be unlawful residential premises. See section 77(2)(ac) Residential Tenancies Act 1986. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.
If the landlord has applied for termination for rent arrears, and the Tribunal declares the residential tenancy to be unlawful, the Tribunal may order termination, but it is not required to do so. See section 78A(3)(b) RTA.
It is necessary to consider whether the premises can be occupied as a separate household unit. The landlord produced a floorplan of the entire premises. The tenant occupied part of the downstairs area which included two bedrooms, a bathroom, a family room and a kitchenette which in the floorplan is referred to as a pantry. The landlord occupied the remaining of the downstairs area and the entire upstairs area.
There are two doors between the tenant’s area and the landlord’s area. One door is in the pantry and the other is in the tenant’s family room which leads to the landlord’s kitchen.
The floorplan shows that this residence was originally intended to be one premises. The two doors have apparently been locked and shelving units are in front of them on the tenant’s side. The tenant said that the landlord locked the doors and they do not have keys for the doors.
The unit occupied by the tenant is clearly a residential premises, in that it is a part of the premises, used for occupation as a place of residence. Put simply, it was intended that the tenant live in the premises, and the tenant did, in fact, live there. The question is whether the premises can be lawfully occupied as residential premises, either generally or for the particular residential purposes for which the tenant occupied it, and whether the landlord’s failure to comply with either section 35 or section 45(1)(c) caused or contributed to the unlawfulness of the occupation.
In the present case, the particular purpose is the occupation of the premises as a second household unit, separate to the landlord’s part of the building. While the premises can be occupied as the building as a whole has council consent for residential use, an issue arises when looking at the division of the premises into two separate household units.
Section 45(1)(c) provides 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.
One of those enactments is the Building Act 2004. Sections 114 and 115 of the Building Act deals with the change of use of consented buildings. Section 115 states that where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, the territorial authority (in this case Auckland Council) must give the owner written notice that it 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.
No evidence was submitted to establish that the landlord had consent for the tenant’s area downstairs to be used as a separate premise and therefore no consent for the change of use from one dwelling to two dwellings.
I consider that the landlord has not complied with the Building Act, and consequently has failed to comply with section 45(1)(c) of the Act. The failure to obtain consent to divide the premises into two household units makes occupation of it in that particular manner, unlawful. Accordingly, the premises is an unlawful residential premises.
Where it finds unlawful residential premises section 78A(4) applies. Section 78A(4) states; The Tribunal may order the landlord to pay the tenant – (i)The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful premises; or (ii)An amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.
I consider that section 78A(4)(ii) should apply to this case because the tenant has had some benefit from living at the property.
I must carefully weigh what amount of rent it is fair to deduct. Other than considering the nature of the premises, “the special circumstances” that I must have regard to are not stated within the RTA. However other Tribunal decisions have weighed the following factors: (a) The landlord’s motivation for renting the property, and their conduct during the tenancy; (b) The tenant’s motivation for renting the property and bringing the claim, and the length of time she lived in the property; (c) The benefits the landlord received in renting the property; (d) The benefits the tenant received in renting the property; (e) The seriousness of the regulatory breaches making the premises unlawful; (f) Any other breaches by the landlord; (g) Any detriment or loss the tenant suffered; (h) The purpose of s78A in ensuring landlords do not unfairly profit from unlawful premises; (i) The public interest in discouraging unlawful tenancies; (j) Any other compensation or exemplary damages that are ordered.
After consideration of the special circumstances, I consider that a rent refund of 10% is reasonable. The weekly rent was $500.00 and the tenancy lasted for 19 weeks. At $50.00 (10%) per week the refund amounts to $950.00. Healthy Homes standards
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Heng Ren and Meng Xin considers that the landlord has failed to comply with the HHS heating standard, insulation standard, and the moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 120 days of any new or renewed tenancy between 28 August 2022 and 2 March 2024.
The compliance date for this tenancy was 17 October 2023.
The landlord did not provide any evidence to prove that the premises complies with the Healthy Homes standards. I consider that the landlord has breached this standard.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The tenant complained of a significant issue with mould at the premises. Several photographs were produced showing damage to clothing and shoes. The tenant also believes that the mould caused skin irritations.
At the hearing the landlord said that she kept reminding the tenant to open the window and to get a dehumidifier. She said that the tenant did not open the windows. She said that there had been no problems with previous tenants. In respect of the heating the landlord said that there was agreement that the landlord would not supply a heater, and this was recorded in the Tenancy Agreement. The landlord said that a heat pump was ordered by the tenant asked for it to be installed after the tenancy ended.
At paragraph 7 of the translated version of the Tenancy Agreement it states that Party A does not provide AC (air-conditioner), dehumidifier, oven or dryer.
While this is a term of the Tenancy Agreement the Residential Tenancies Act states at section 11 that agreements which are inconsistent with the Act shall be of no effect. This means that despite what it says in the agreement, the landlord should still have complied with the legislation in respect of the Healthy Homes standards.
I accept that the landlord’s failure to comply with the Healthy Homes standards has had a detrimental effect on the tenant. The landlord was aware of the mould and had commented to the tenant about it but did not carry out any investigation as to what caused the mould because she believed that the tenant was at fault.
The landlord was aware of the Healthy Homes standards. The landlord cannot rely on the tenant not wanting the heat pump installed as a reason for it not being installed. It is the responsibility of the landlord.
Taking account of the evidence produced I consider that an award of $1,000.00, the equivalent of two weeks rent, is reasonable.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4731511 — Healthy homes at 86C Kelman Road, Kelston, Auckland 0602

At a glance

Tenancy Tribunal case 4731511 — Healthy homes at 86C Kelman Road, Kelston, Auckland 0602

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions