What was Tenancy Tribunal case 4773557 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4773557?

Being: $1,530.00 awarded to landlord; Compensation: $20.44 awarded to landlord

What type of tenancy dispute was case 4773557?

The primary dispute was Rent arrears. Related themes: Leaks.

Where can I read the official tribunal order for case 4773557?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10295311-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4773557 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4773557?

Being: $1,530.00 awarded to landlord; Compensation: $20.44 awarded to landlord

What type of tenancy dispute was case 4773557?

The primary dispute was Rent arrears. Related themes: Leaks.

Where can I read the official tribunal order for case 4773557?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10295311-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4773557 — Rent arrears

Claims and awards in Tenancy Tribunal application 4773557. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
being	$1,530.00		being
rent repayment and	$20.44		rent repayment and

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
Pam Bourke-Shaw and Rod Bourke-Shaw must pay [The tenant/s] $1,550.44 being $1,530 rent repayment and $20.44 filing fee.

Reasons

All parties attended the hearing on 5 April. Ms Rigg of counsel appeared for the landlords.
After the Tribunal’s order made on 8 February, the parties filed submissions relating to the issue of whether the premises were unlawful residential premises and I have considered those submissions and the additional evidence that has been filed.
There was discussion at the hearing about the circumstances that existed in 1995, when the landlords bought the premises and carried out work on the ground floor of the building, and about the planning rules that applied at that time. Law
The Tribunal may declare premises to be unlawful residential premises under s77(2)(ac) of the Residential Tenancies Act 1986 (the Act). 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 s36 or s45(1)(c) of the Act.
Section 36 of the Act requires the landlord to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes. It is therefore concerned with the law applying to the tenant’s occupation of the premises.
Section 45(1)(c) of the Act requires the landlord to comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises. It is therefore concerned with the physical condition of the premises.
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 make any of these orders on its own initiative, even if the tenant has not applied for an order. Key Facts
When the premises were built in the 1960, there was one title with two buildings on the land. One building was the main house ([Building 1]) and the other building was a garage with a “studio” above ([Building 2]). That “studio’ eventually became the premises and the garage, somewhat confusingly, came to be called the studio.
In 1975, the council permitted the upper floor of the garage to be converted to a separate flat and the conversion was completed.
Before the landlords bought the property in 2006, a family lived in the main house and used the flat above the garage.
After the landlords bought the property, they put [Building 1] and [Building 2] into separate titles on cross leases.
The landlords lived in the main house and their children lived in [Building 2] for 2 or three years.
The landlords then carried out work to the space below the flat which had been the garage. It seems that there was already plumbing there for a bathroom and there was a kitchenette. The landlords said at the last hearing that they installed a kitchen, but their evidence is now that they upgraded the kitchen and the bathroom.
In any case, there was no application for, or grant of, consent for the building work and there was no application for, or grant of resource consent (change of use).
When the work was completed, the landlords rented out the flat upstairs and the studio below as two separate premises.

Unlawful Residential Premises?

Emails from the council planning department state that in 1975, under the [County] District Scheme 1968, the flat was legally established as a residential unit. At that time apartment houses containing not more than two household units was a permitted use.
The rules that applied in 1995 or 1998 are less clear. What we do know is that the Resource Management Act 1991 (RMA) was in force by then. It’s also public knowledge that in 1989 [County] was incorporated into [City] and from 1995 there was a new Operative [City] Plan.
It is safe to assume, in my view, that under the RMA and the Operative Plan, converting [Building 2] into two separate residential units required resource consent. Certainly, the landlords have not provided any evidence to the contrary and nor have they provided any assurance from the council that it was lawful for [Building 2] to be used as two separate residential units from 1998 or thereabouts.
The fact that the flat was lawful and that the tenants occupied the flat does not make their occupation of the flat lawful. If the building could not be used as two separate residential dwellings, then if both are occupied at the same time, both are being occupied unlawfully. If only one is being used, or if they are occupied as one residential unit, there isn’t a problem.
I find therefore that the premises, at the time they were occupied by the tenants, could not lawfully be occupied by them for residential purposes. That satisfies s78A(2)(a) of the Act.
The evidence does not indicate that that any failure by the landlords to comply with s45(1)(c) has caused or contributed towards the unlawful occupation.
I must then consider s36 of the Act. Did the landlords take all reasonable steps to ensure that, at the commencement of the tenancy, there was no legal impediment to the occupation of the premises for residential purposes?
Ms Rigg rightly pointed out that we are dealing with the commencement of this tenancy. But that does not mean, in my view, that the focus is solely on the situation at the commencement of the tenancy. Section 36 required the landlords to take all reasonable steps at the commencement of the first tenancy from 1998 or there abouts and for every tenancy thereafter.
The landlords’ evidence was that they were not advised by their lawyer when they bought the property that there was any issue in this respect. That is not surprising. They were buying the property as one residential unit and there was no evidence that their lawyers were aware at that time that [Building 2] would be converted into and used as two separate residential units.
Section 36 requires the landlords to take all reasonable steps. There is no evidence that the landlords took any steps to ensure that [Building 2] could lawfully be occupied as two residential units. Therefore, either it was reasonable for the landlords to take no steps, or they have been in breach of s36.
I cannot accept that it was reasonable for the landlords to take no steps. In my view, it should have apparent to them in 1998 that the change of use of [Building 2] from occupation by their family as one residential unit to occupation by tenants as two residential units was a significant change and that there could be regulatory requirements relating to that change. If the position were otherwise, it would absolve landlords of any responsibility in these circumstances and that could put tenants at grave risk.
All that the landlords needed to do was to enquire of the council, providing all the relevant information, as to whether there were any regulatory requirements that had to be met before the building could be used as two separate dwellings. It is reasonable to expect the landlords to have taken that step.
It follows that I must find that the premises were unlawful residential premises for the purposes of s78A of the Act. I must therefore consider what, if any, order I should make under s78A(4) of the Act. Remedy
In my view there should be an order requiring the landlord to repay rent in this case. The main concern in a case like this is that without consent to use the building as two separate residential units, there has been no oversight as to the safety of those people who occupy the units. Without that oversight there is a risk that precautions needed to make such use of the building safe, have not been taken. The main risk in this respect, in my view, is the risk to the occupants in the event of a fire in one of the units. But other risks may exist such as the electrical safety of the units.
Against that there is no evidence that the premises the tenants occupied were unsatisfactory in terms of s45(1)(c).
I also accept that in 1998, the general awareness of issues of resource consent for change of use for residential premises was probably less than it is now.
Taking all things into consideration I find that it is fair to make a deduction of 80% from the rent paid by the tenant for the tenancy.
The tenancy was for 17 weeks at a rent of $450 per week which makes a total of $7,650. 80% of that is $6,120. $7,650 - $6,120 = $1,530. I have therefore ordered the landlords to repay the tenants the sum of $1,530. Filing Fee
The filing fee was awarded under the previous order. Suppression
The tenants were successful on their application and so I have granted them name suppression as before.

Claims and awards in Tenancy Tribunal application 4773557. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
being	$1,530.00		being
rent repayment and	$20.44		rent repayment and

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
Pam Bourke-Shaw and Rod Bourke-Shaw must pay [The tenant/s] $1,550.44 being $1,530 rent repayment and $20.44 filing fee.

Reasons

All parties attended the hearing on 5 April. Ms Rigg of counsel appeared for the landlords.
After the Tribunal’s order made on 8 February, the parties filed submissions relating to the issue of whether the premises were unlawful residential premises and I have considered those submissions and the additional evidence that has been filed.
There was discussion at the hearing about the circumstances that existed in 1995, when the landlords bought the premises and carried out work on the ground floor of the building, and about the planning rules that applied at that time. Law
The Tribunal may declare premises to be unlawful residential premises under s77(2)(ac) of the Residential Tenancies Act 1986 (the Act). 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 s36 or s45(1)(c) of the Act.
Section 36 of the Act requires the landlord to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes. It is therefore concerned with the law applying to the tenant’s occupation of the premises.
Section 45(1)(c) of the Act requires the landlord to comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises. It is therefore concerned with the physical condition of the premises.
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 make any of these orders on its own initiative, even if the tenant has not applied for an order. Key Facts
When the premises were built in the 1960, there was one title with two buildings on the land. One building was the main house ([Building 1]) and the other building was a garage with a “studio” above ([Building 2]). That “studio’ eventually became the premises and the garage, somewhat confusingly, came to be called the studio.
In 1975, the council permitted the upper floor of the garage to be converted to a separate flat and the conversion was completed.
Before the landlords bought the property in 2006, a family lived in the main house and used the flat above the garage.
After the landlords bought the property, they put [Building 1] and [Building 2] into separate titles on cross leases.
The landlords lived in the main house and their children lived in [Building 2] for 2 or three years.
The landlords then carried out work to the space below the flat which had been the garage. It seems that there was already plumbing there for a bathroom and there was a kitchenette. The landlords said at the last hearing that they installed a kitchen, but their evidence is now that they upgraded the kitchen and the bathroom.
In any case, there was no application for, or grant of, consent for the building work and there was no application for, or grant of resource consent (change of use).
When the work was completed, the landlords rented out the flat upstairs and the studio below as two separate premises.

Unlawful Residential Premises?

Emails from the council planning department state that in 1975, under the [County] District Scheme 1968, the flat was legally established as a residential unit. At that time apartment houses containing not more than two household units was a permitted use.
The rules that applied in 1995 or 1998 are less clear. What we do know is that the Resource Management Act 1991 (RMA) was in force by then. It’s also public knowledge that in 1989 [County] was incorporated into [City] and from 1995 there was a new Operative [City] Plan.
It is safe to assume, in my view, that under the RMA and the Operative Plan, converting [Building 2] into two separate residential units required resource consent. Certainly, the landlords have not provided any evidence to the contrary and nor have they provided any assurance from the council that it was lawful for [Building 2] to be used as two separate residential units from 1998 or thereabouts.
The fact that the flat was lawful and that the tenants occupied the flat does not make their occupation of the flat lawful. If the building could not be used as two separate residential dwellings, then if both are occupied at the same time, both are being occupied unlawfully. If only one is being used, or if they are occupied as one residential unit, there isn’t a problem.
I find therefore that the premises, at the time they were occupied by the tenants, could not lawfully be occupied by them for residential purposes. That satisfies s78A(2)(a) of the Act.
The evidence does not indicate that that any failure by the landlords to comply with s45(1)(c) has caused or contributed towards the unlawful occupation.
I must then consider s36 of the Act. Did the landlords take all reasonable steps to ensure that, at the commencement of the tenancy, there was no legal impediment to the occupation of the premises for residential purposes?
Ms Rigg rightly pointed out that we are dealing with the commencement of this tenancy. But that does not mean, in my view, that the focus is solely on the situation at the commencement of the tenancy. Section 36 required the landlords to take all reasonable steps at the commencement of the first tenancy from 1998 or there abouts and for every tenancy thereafter.
The landlords’ evidence was that they were not advised by their lawyer when they bought the property that there was any issue in this respect. That is not surprising. They were buying the property as one residential unit and there was no evidence that their lawyers were aware at that time that [Building 2] would be converted into and used as two separate residential units.
Section 36 requires the landlords to take all reasonable steps. There is no evidence that the landlords took any steps to ensure that [Building 2] could lawfully be occupied as two residential units. Therefore, either it was reasonable for the landlords to take no steps, or they have been in breach of s36.
I cannot accept that it was reasonable for the landlords to take no steps. In my view, it should have apparent to them in 1998 that the change of use of [Building 2] from occupation by their family as one residential unit to occupation by tenants as two residential units was a significant change and that there could be regulatory requirements relating to that change. If the position were otherwise, it would absolve landlords of any responsibility in these circumstances and that could put tenants at grave risk.
All that the landlords needed to do was to enquire of the council, providing all the relevant information, as to whether there were any regulatory requirements that had to be met before the building could be used as two separate dwellings. It is reasonable to expect the landlords to have taken that step.
It follows that I must find that the premises were unlawful residential premises for the purposes of s78A of the Act. I must therefore consider what, if any, order I should make under s78A(4) of the Act. Remedy
In my view there should be an order requiring the landlord to repay rent in this case. The main concern in a case like this is that without consent to use the building as two separate residential units, there has been no oversight as to the safety of those people who occupy the units. Without that oversight there is a risk that precautions needed to make such use of the building safe, have not been taken. The main risk in this respect, in my view, is the risk to the occupants in the event of a fire in one of the units. But other risks may exist such as the electrical safety of the units.
Against that there is no evidence that the premises the tenants occupied were unsatisfactory in terms of s45(1)(c).
I also accept that in 1998, the general awareness of issues of resource consent for change of use for residential premises was probably less than it is now.
Taking all things into consideration I find that it is fair to make a deduction of 80% from the rent paid by the tenant for the tenancy.
The tenancy was for 17 weeks at a rent of $450 per week which makes a total of $7,650. 80% of that is $6,120. $7,650 - $6,120 = $1,530. I have therefore ordered the landlords to repay the tenants the sum of $1,530. Filing Fee
The filing fee was awarded under the previous order. Suppression
The tenants were successful on their application and so I have granted them name suppression as before.

Tenancy Tribunal case 4773557 — Rent arrears

At a glance

Tenancy Tribunal case 4773557 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Unlawful Residential Premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Unlawful Residential Premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions