What was Tenancy Tribunal case 4779337 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 4779337?

Compensation: breach of quiet enjoym…: $200.00 awarded to tenant; Compensation: Breach Of S66I: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Refund: Unlawful Premises: $2,000.00 awarded to tenant

What type of tenancy dispute was case 4779337?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4779337?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12640486-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4779337 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 4779337?

Compensation: breach of quiet enjoym…: $200.00 awarded to tenant; Compensation: Breach Of S66I: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Refund: Unlawful Premises: $2,000.00 awarded to tenant

What type of tenancy dispute was case 4779337?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4779337?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12640486-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4779337 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4779337 — net $5,227.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund: unlawful premises	$2,000.00	Rent refund: unlawful premises
Compensation: breach of s66I	$1,000.00	breach of s66I
Exemplary damages: breach of s66I	$2,000.00	breach of s66I
Compensation: breach of quiet enjoyment	$200.00	breach of quiet enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,227.00
Total payable by Landlord to Tenant	$5,227.00

Claims and awards in Tenancy Tribunal application 4779337 — net $5,227.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund: unlawful premises	$2,000.00	Rent refund: unlawful premises
Compensation: breach of s66I	$1,000.00	breach of s66I
Exemplary damages: breach of s66I	$2,000.00	breach of s66I
Compensation: breach of quiet enjoyment	$200.00	breach of quiet enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,227.00
Total payable by Landlord to Tenant	$5,227.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
James Mark Brown must pay [The tenant/s] $5,227.00 immediately, calculated as shown in the table below.

All other claims are dismissed.

Reasons

The hearing was attended by [The tenant/s], Mr Brown and Ms Guiling Yang. _47793372
This is a rehearing of two applications involving the parties. [The tenant/s] has filed an application (number 4779337) claiming various breaches of landlord obligations by Mr Brown. Mr Brown has lodged a cross application (number 4820288) claiming rent arrears, compensation, and exemplary damages for various breaches by [The tenant/s].
Both parties provided documentary, photographic and oral evidence. The landlord prepared detailed written submissions. At the initial hearing on jurisdiction, [The tenant/s] called a witness to give evidence. Background
The property at [Tenancy address suppressed] is a residential property owned by the trustees of Blue Sky Trust. The Trustees entered into a residential tenancy agreement with Mr Brown on 1 June 2015. The property is a two-level home with bedrooms and bathrooms on both levels and a garage. In the main house, there are 6 bedrooms upstairs, and three downstairs. There is a kitchen, laundry, dining room and lounge in the lower level. There is also a garage and covered carport area.
[The tenant/s] and Mr Brown signed an agreement on 13 November 2016. (This written agreement was not available to the adjudicator who made the earlier finding). The agreement records a weekly rent, deposit, and covers the use of an outside room, other rooms, garage and shared use of common areas.
The area occupied by [The tenant/s] (variously described as a garage, storage space, and/or workshop) is shown on a plan provided to the Tribunal as a carport, which is enclosed and covered. This area did not have any bathroom or cooking facilities. In my previous order, it was referred to as the workshop. For the purposes of this order, this area will be referred to as the garage.
An earlier finding of the Tribunal was that the agreement between Mr Brown and [The tenant/s] was not a residential tenancy. The first part of the rehearing was to consider the Tribunal’s jurisdiction. [The tenant/s] submitted this was a boarding house tenancy that comes within the RTA. Mr Brown disputed whether the Tribunal had jurisdiction, asserting that he had a flat-sharing arrangement with [The tenant/s].
Following hearings on the issue of jurisdiction, I determined that the agreement between Mr Brown and [The tenant/s] was a residential tenancy under the Residential Tenancies Act 1986 (the RTA). Therefore, jurisdiction to consider the substantive issues arising from the applications was confirmed.
In that order it was noted that Mr Brown held the tenancy of the whole premises, and entered into a separate agreement with [The tenant/s]. Mr Brown granted [The tenant/s] exclusive occupation of the garage and shared use of some common areas. There was also an arrangement where [The tenant/s] did work, _47793373 in exchange for accommodation. In this order, I will refer to Mr Brown as the landlord and [The tenant/s] as the tenant.

What is the nature of this tenancy?

I find that the arrangement between the landlord and tenant was most likely a boarding house tenancy. My reasons for this finding are set out below.
A boarding house tenancy is a separate category of tenancy as defined in the

RTA

1 . A boarding house means: • residential premises with one or more boarding rooms • facilities for communal use by tenants • occupied or intended by the landlord to be occupied, by at least 6 tenants at any one time

A boarding house tenancy means a residential tenancy in a boarding house: • That is intended to, or does in fact last, for 28 days or more • Under which a tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house.
The definition of premises in relation to a boarding house tenancy under section 66B is as follows: premises means the boarding house, comprising the boarding rooms and all the facilities of the boarding house; and includes any part of any premises.
In the High Court decision of Karmarkar v Pandem 2 Bohemen J set out the relevant questions when deciding whether the tenancy is a boarding house tenancy: [34] In my view, it is possible to make sense of the definitions by asking the following questions: (a) Does the house contain one or more bedrooms along with facilities for communal use by the tenants? (b) Is the house occupied or intended to be occupied by 6 or more tenants? (c) Is the tenancy intended to, or does in fact, last for 28 days or more? 1 s.66B RTA 2 [2018] NZHC 639 _47793374 (d) Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use? (e) Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants?
The Court stated that if the answer to all of the questions was “yes” then the tenancy was a boarding house tenancy and the rest of the provisions of Part 2A of the RTA would apply. The Court did, however, acknowledge that applying these questions will not always be straightforward. Questions of judgment can arise as to whether what is set out in the tenancy agreement reflects the reality of how a tenancy operates, particularly with respect to the last two questions. The Court further noted that if the five questions were answered in the affirmative “then it should not be necessary to enquire into whether the tenancy has the attributes required under ss66C – 66Y as a matter of law.”
In this case the tenant provided detailed oral evidence at the hearing about the garage, together with photographic evidence. The tenant states that when he first moved in, the area he used for sleeping was fully enclosed and there were two doors and one window that opened. The room was fully lined, and the roof was insulated but not the walls. There was no kitchen or bathroom facility within that space. He would use the ground floor bathroom and kitchen in the main house. There was also a workbench in the other part of the carport. He was performing 8 to 10 hours of work a week, which was equivalent to $280.00 rent per week. He states he did not pay the landlord money; he only did work for him. He lived there from 27 November 2016 to 17 February 2024.
The landlord maintains that the arrangement was commercial, and it was not a boarding house tenancy, hence the reason he entered into a flat-sharing agreement with the tenant. In my previous order on jurisdiction, I have addressed those aspects of the landlord’s claims. In summary, I found that the written agreement, together with the evidence regarding the occupation arrangement, showed that it was not a commercial premises and was therefore not excluded under section 5(1)(a) of the RTA. It was noted that the property itself was residential, and the written agreement lacked the qualities of a commercial lease, or an agreement for the storage of goods alone.
The substance of the arrangement also supported this being a residential tenancy, since the tenant stored his personal belongings at the premises and was permitted to sleep there. The use of the workshop was not confined to the storage and use of tools and materials, and extended to occupation for residential purposes.
In terms of whether this was an agreement between flatmates, I found that, while the agreement described Mr Brown as the head flatmate and [The tenant/s] as _47793375 the sub flatmate, these labels were not determinative. Furthermore, as noted in the decision of Musson v Dobrisek 3 the word "flatmate" does not in itself define the nature of the legal relationship between a flatmate and any landlord. The word is a convenient label reflecting a functional arrangement rather than a legal relationship. Therefore, rather than being a relationship between flatmates, Mr Brown was effectively the landlord or sublandlord, and [The tenant/s] was a tenant or subtenant.
Accordingly, having had regard to the documentary, photographic and oral evidence provided to me, I am satisfied that this is most likely a boarding house tenancy. This is because the elements set out in Karmarkar (above) for a boarding house tenancy are satisfied.
The evidence shows that, in addition to the garage occupied by the tenant, there were 6 bedrooms upstairs and 3 bedrooms downstairs in the main house, along with common facilities, including bathrooms, a kitchen, laundry and living areas. The house was occupied or intended to be occupied by 6 or more tenants. This tenancy was over 7 years, so it lasted well over 28 days. Each tenant was granted exclusive rights to occupy a particular bedroom, and this right was derived from an agreement between the landlord and the individual tenant. Whether Ms Yang should be included as a party
Ms Yang was also named as a respondent, but objects to being included in the proceedings. She is a trustee of Blue Sky Trust, which owns the property.
As trustee of Blue Sky Trust, it is appropriate that Ms Yang is made aware of these proceedings, and was given the opportunity to attend the hearing. However, as Mr Brown is regarded as the landlord for this tenancy, the order records that he is liable for the amount awarded. I have therefore removed Ms Yang as a respondent. The applications The tenant’s application: 4779337
The substantive issues to be determined arising from the tenant’s application are as follows: • Is this an unlawful residential premises? • Has the landlord been in breach of repair and maintenance obligations? • Has the landlord been in breach of the Healthy Homes Standards? 3 Musson v Dobrisek CIV-2006-032-36 _47793376 • Has the landlord complied with regulations concerning smoke alarms? • Does the insulation comply? • Has the landlord unlawfully entered the premises? • Has there been a breach of the tenant’s quiet enjoyment ? • Was the termination of the tenancy unlawful? The landlord’s application: 4820288
In the original application filed by the landlord, the following claims were noted: • Rent arrears of $18,000 • Compensation for use of the kitchen laundry and bathroom • Compensation for storage of the tenant’s belongings and disposal of goods • Compensation for property destruction: $1,000.00
Since filing the application, the landlord has sought to amend the application to include various other claims, including claims of unlawful activity by the tenant, which I have declined to consider. As explained at the hearing, the focus is on the claims as filed. The landlord has the option to file a further application regarding the other claims identified. General principles
In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish, with evidence, that their claim is “more likely than not.”
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
Exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA and as listed in Schedule 1A of the Act. They are different from compensation and are designed to punish and deter, more 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 _47793377 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 are awarded at the Tribunal’s discretion. Where one party has proved that the other party has committed a defined unlawful act, before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA.

Is the premises an unlawful residential premises?

Legal framework

Section 36 of the RTA states that the landlord “shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.”
This obligation is also set out in section 66H, with reference to the landlord of a boarding house tenancy. Section 66H(2)(c) of the RTA provides that when the tenant first takes occupation of a boarding room under a boarding house tenancy, the landlord must ensure that “there is no legal impediment to the tenant’s occupation of the room.”
Section 66I(1)(c) states that the landlord of the boarding house must at all times comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises.
Section 78A of the RTA sets out the range of orders the Tribunal may make concerning unlawful residential premises.
“Unlawful residential premises” is defined in section 78A(2) as: 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.
Where the Tribunal finds the premises are unlawful residential premises under section 78A(4) of the RTA, it may order the landlord to (i) repay the tenant all the rent they paid; or (ii) a lesser amount of rent repayment that it finds fair _47793378 having regard to the special circumstances of the case, including the nature of the premises.
Section 78A(3) provides: (3) Despite anything to the contrary elsewhere in this Act,— (a) unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i) any sum found to be owing by way of rent in arrear; or (ii) any other sum by way of damages or compensation: (b) if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.
The public policy behind the introduction of section 78A was to discourage landlords from renting out properties that were, for example, unconsented or unlawful and had therefore never been subject to the need to meet legal requirements to ensure their safe and healthy occupation by tenants. 4 Analysis: whether the premises is unlawful
In this case, the garage was not consented by Auckland Council for residential use. The landlord accepts this to be the case, as noted in his written submissions and oral submissions at the hearing.
The landlord acknowledged at the hearing that the garage was not habitable without conversion. The landlord has pointed out that conversion of a non- habitable space into a habitable space is legal, provided it follows the Building Code. However, in this case, the landlord has not produced any evidence to show that the garage was fit for residential use and complied with the Building Code.
The landlord has stated that he had given the tenant two weeks free use of the space to accomplish the conversion. The tenant did not do that and therefore, he did not fulfil the requirements of the agreement. The landlord states he had not received a deposit from the tenant, relies on the Flatmate Agreement and the fact that he was not leasing a habitable space at the time. He also notes the tenant had no permission to live there.
Overall, I do not accept the landlord’s submissions. The expectation that the tenant would convert the garage into a habitable space and obtain the 4 Tenant v Presland & Co Trustee Co Ltd [2021] NZTT 4290197 _47793379 necessary consent for it, within two weeks, is implausible. It is the landlord’s responsibility to ensure that, prior to the tenant’s occupation, there is no legal impediment to occupation for residential purposes. That obligation is set out in section 66H of the RTA. I also do not accept the claim that the tenant did not have permission to live there. The landlord was clearly aware and allowed the tenant to occupy the garage for residential purposes, when it was not consented for this purpose, for over 7 years.
Furthermore, the landlord did not have the necessary council consent to operate the premises as a boarding house. Auckland Council inspected the premises in 2019, and again on 17 January 2024. I find the comments of Mr Glazebrook, Senior Project Specialist at Auckland Council, to be persuasive. His findings following the inspection, as recorded in the Notice to Fix dated 19 January 2024, are as follows: During an Auckland Council inspection of [Tenancy address suppressed] on 17 January 2024 Council officers identified that there had been no change from the 2019 visit and that the premises were still being used as an unconsented and non-compliant boarding/ accommodation house. The main dwelling at [Tenancy address suppressed] is no longer a single family household unit but is permanent or transient accommodation where six or more people (not including members of the residing family) occupy as tenanted accommodation. There has been a change of use from Classified Use Detached Dwelling, Building Use SH, and fire risk group SH to Classified Use Community Service, Building Use SA, and Fire risk group SM.
Mr Glazebrook wrote that the Council had not given the owners written notice that the change of use complied with the Building Code and therefore, there was a breach of the Building Act 2004. To remedy the contravention, the owner was required to either immediately revert the use of the main dwelling to a single family household unit and remove all building works carried out without consent; or notify Auckland Council of the change of use and apply for a building consent, to ensure the change complied with the Building Code and the Building Act 2004. Alternatively, the owner was able to pursue another option that would achieve compliance with the Building Act 2004.
In this case, the landlord has not provided any persuasive evidence that the garage complied, for the period of the tenancy, or that the landlord had the necessary Council approval to operate a boarding house. The landlord states that the Council findings were not accepted. However, he has not shown that either the requirements were addressed, or that they were successfully challenged.
Accordingly, I find this is an unlawful residential premises, since the landlord did not have regulatory approval for residential use of the garage. Furthermore, the _477933710 premises did not have the necessary Auckland Council consent to be used as a boarding house.
Having made that finding, the next step is to determine the remedy. This is set out below.

What is the appropriate remedy?

The Court of Appeal in Parbhu v Want 5 disparaged a sledgehammer response of a full rent reduction in response to “relatively footling” breaches. However, I do not regard this to be a situation where there is a technical or relatively minor breach.
A series of decisions in the District Court by Judge Clark provide guidance on the approach to section 78A. These cases include Chen v Kumar [2022] NZDC, Kemp v Elliott [2022] NZDC 17792, Presland and Co Trustee Co v Makele [2022] NZDC 21087, and Harding v Caroto [2023] NZDC 5981.
The starting point is to consider whether section 78(2)(a) and (b) of the Act were satisfied. These provisions require the Tribunal to be satisfied that the premises “cannot lawfully be occupied for residential purposes” and that the landlord’s failure to comply with either section 36 or section 45(1)(c), has caused the occupation to be unlawful or has contributed to that unlawful occupation.
In terms of special circumstances in section 78A(4), these do not need to be out of the ordinary, or require any “special” facts, but rather, an assessment of where the interests of justice lie in all the circumstances. In Chen v Kumar, Judge Clark considered the evidence about the tenant’s desire to stay at the premises and his motivations for filing a Tribunal claim to be “highly relevant” to whether “special circumstances” existed. The Court also discouraged a percentage based approach to assessing the amount of rent to be refunded in light of the special circumstances.
In this case, the weekly rent (including expenses) was recorded in the agreement as being $280.00 per week. The tenant was not paying rent, but was working 8 to 10 hours per week. The landlord considers the tenant owes him rent arrears (which is discussed below). There is some difficulty in determining a rent reduction in view of the arrangement between the parties, since the tenant was providing services rather than making regular rent payments for the relevant period. However, aside from the dispute over whether the tenant performed the work in this time, there are a number of other considerations in this case.
The tenant was fully aware, when moving in, that the garage was not compliant. He also undertook work at the premises to address its defects. The tenant stayed at the premises for over 7 years. The issue arose at the end of this 5 Parbhu v Want [2018] NZHC 2079 _477933711 period, and so the motivation of the tenant is a factor to be noted. His evidence is that, for the most part, he enjoyed living there.
Taking all these factors into account, I consider $2,000.00 to be an appropriate rent refund in this case for the premises being an unlawful residential premises.

Were there breaches under section 66I?

Under section 66I of the RTA the landlord of a boarding house must • provide the premises in a reasonably clean condition • provide and maintain the premises in a reasonable state of repair • comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 • comply with the healthy homes standards (HHS) • comply with any relevant enactment in relation to buildings, health and safety (See sections 66I(1)(a) to (c) of the RTA)
Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $7,200.00. See section 66(4) and Schedule 1A of the RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the RTA. Repairs and maintenance
The extent of the landlord’s obligation to repair was considered in the decision of Barfoot & Thompson v Casey. 6 The Court noted that the tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 7 Once notified, the landlord is obliged to repair within a reasonable time. 6 CIV-2005-004-001762, 7 November 2007 7 Section 40(1)(d) _477933712
The tenant states there were leaks when it rained, and the down pipe became blocked. It was also draughty and there were gaps between one of the doors. The tenant has provided photographic and oral evidence in support.
In reply, the landlord states that the tenant never complained to him about the leaks or any other issues during the tenancy. An electrician informed him a skylight had been installed without his knowledge, which allowed the water to leak through. The power board became a fire hazard, and that issue arose because the tenant put a temporary kitchen into his space, without consent, in July 2023.
In this case it is likely there were repair and maintenance issues that arose during this tenancy, although the evidence is conflicting as to when the landlord was notified of these issues. Smoke alarms
Under section 66I of the Residential Tenancies Act 1986 (the RTA), landlords of a boarding house are required to install smoke alarms. 8 The smoke alarms must meet the qualifying requirements set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and must be installed in certain locations.
In terms of boarding house tenancies, Regulation 6 applies. This requires that there must be at least one qualifying smoke alarm installed in the tenant’s boarding room or within 3 metres of the entrance to the tenant’s boarding room. There should also be a smoke alarm on each storey of a tenancy property. Where the landlord is in breach of the smoke alarm requirements, this is an unlawful act for which exemplary damages may be awarded.
The tenant stated that there were no smoke alarms in his area for part of the tenancy. When Auckland Council came in 2019, the landlord installed 8 to 10 smoke alarms. There was a smoke alarm in his area. In the kitchen, the smoke alarm would go off when the kitchen filled with smoke and other tenants would then climb on a chair and turn it off. A smoke alarm was installed in the kitchen area. There was no smoke alarm in his bedroom. There were altogether four smoke alarms in the downstairs area and one in the carport area, and a further smoke alarm in the stairwell and corridor.
In reply, the landlord states the kitchen had smoke alarms and fire extinguisher and he did not have problems replacing them.
In this case it seems that, for so must part, there were smoke alarms in the premises, which is supported by the tenant’s evidence. The tenant claims there 8 Section 66I(1)(ba) _477933713 was a period prior to 2019 where smoke alarms were not installed, but the evidence about this period is unclear. I accept that the area where the tenant slept did not have a smoke alarm, although there was a smoke alarm in the carport area. It is difficult to conclude, without more detailed evidence, whether this smoke alarm would meet the requirements under the regulations. Insulation
[The tenant/s] claims that the landlord has breached the obligations under section 66I(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3. There are exceptions to these requirements, for example, where it is impractical to install insulation, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded. See section 66I(4) and Schedule 1A of the RTA.
The tenant claims the garage does not comply with the requirements for insulation under the regulations. The tenant provided photographs of the garage, stating it was rough and unliveable, although he later made it liveable. He noted that two of the four walls were not insulated.
The landlord states that he was unsure whether the roof was insulated. However, the main house was insulated 8 years ago. The carport area was an open area and had access to the storage area. The landlord states that this is a storage room/carport/garage area with little insulation, as it was a non- residential area. He allowed the tenant to use the space but did not approve of him living there.
Overall, on the basis of the evidence provided, it seems that the area occupied by the tenant, being the garage, is unlikely to meet the insulation requirements. In terms of the main house, the evidence is less clear. The landlord states that the main house more than met the requirements for insulation. _477933714 Healthy Homes Standards
The HHS set out standards for heating, ventilation, insulation, draught stopping, moisture ingress and drainage
Compliance dates for the HHS vary depending on the tenancy. All boarding houses must comply by 1 July 2021.
The tenant claims the premises does not comply with the HHS in terms of draught stopping, and moisture ingress and drainage.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The HHS does provide exemptions in specific circumstances.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances.
In terms of the draught stopping standards, the landlord states that the non- residential areas were not considered areas that needed to be kept draught free. The landlord accepts that the garage was draughty but states the tenant did not ask him to address this.
In this case, it is probable that the premises did not comply with the HHS by the compliance date of 1 July 2021. The landlord cannot delegate this responsibility onto the tenant, even if the tenant was undertaking handyman work for him. Conclusion: section 66I obligations
On balance, I find it more probable than not that the landlord has breached section 66I of the RTA in terms of the requirements for maintaining the premises in a reasonable state of repair, insulation and the HHS.
The tenant was aware, at the start of the tenancy, of the general condition of the garage, and the need for further work to be done. However, the obligation is on the landlord to ensure the necessary work is completed. This responsibility cannot be delegated to the tenant. During the tenancy, there is an ongoing obligation to repair and maintain the premises, and comply with obligations concerning insulation, smoke alarms, and the HHS.
The tenant’s claim for compensation does not show any specific loss, however, the inconvenience and loss of amenity are relevant factors. In this case, taking _477933715 into account the nature of the breach, duration, the effect on the tenant, I consider that an award of $1,000.00 to be reasonable.
I also consider that exemplary damages ought to be awarded. I am satisfied that the unlawful act was intentionally committed and that an award of exemplary damages is just (section 109 RTA). The landlord was aware of the issues, did not remediate them, and allowed the situation to continue. The breaches were intentional. The effect of the breach was that the tenant lived in substandard conditions. In determining the amount of exemplary damages, I have taken into account the public interest in ensuring compliance with the landlord’s obligations. Taking all these factors into account, exemplary damages of $2,000.00 is awarded. Copy of the tenancy agreement
Section 13 of the RTA requires that the tenancy agreement is in writing. Before the tenancy commences, the landlord must sign it and “provide a copy of the tenancy agreement to the tenant (whether or not the tenant has signed it).”
The tenant claims that the landlord did not provide a copy of the tenancy agreement to him. He states that when he asked the landlord for a copy, he did not give it to him. He eventually found his copy of the tenancy agreement a few days after 17 February 2024, soon after he moved out.
The landlord claims that because it was a flatmate agreement that he considered to be inactive, he had stored it in the storage area, which was later broken into. He therefore lost his copy of the agreement.
In this case, the tenant has located his copy of the tenancy agreement and therefore, it seems the landlord did provide a copy to him at the start of the tenancy. Accordingly, no further findings are made under this claim, which is dismissed. Entry to room/ quiet enjoyment
The tenant claims the landlord entered his room unlawfully, without giving notice. This occurred around once a month. The tenant provided oral and video evidence.
In reply, the landlord states that he was in the workshop area, when the tenant was working and the purpose of his visit was to conduct business, and not to harass the tenant. During the tenancy, the tenant made no complaints. He treated the space as a workshop, and he entered when the tenant was working there. He was prevented from entering the bedroom. _477933716
Section 66R of the RTA provides that a landlord must not enter the tenant’s room during the tenancy except with the tenant’s consent, in an emergency, for providing services in the room, or after giving the required notice.
Section 66G(2) of the RTA further provides that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
The right to ‘reasonable peace, comfort, or privacy’ is often described as the right to quiet enjoyment. In this context “quiet” means peaceful, not merely free from noise, and “enjoyment” means the right to full use and benefit of the tenancy property. 9 This right is commonly used in reference to the uninterrupted use of the premises, and can include the right not to have the tenancy significantly impaired by the actions of the landlord and/or the landlord’s agents.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded. See section 66G(4) and Schedule 1A of the RTA. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person." 10
Even though, as landlord of a boarding house, the landlord may have the right to enter the boarding house, at any time, under section 66Q of the RTA, there is also a requirement that he respects the tenant’s right to quiet enjoyment of the premises without interruption, under section 66G. I accept that, on occasions, there was some miscommunication between the parties, and the landlord may have had valid reasons for wanting to speak to the tenant.
Overall, based on the evidence provided, I find that the landlord is likely to have breached the tenant’s right to quiet enjoyment, on several occasions. As to whether the landlord entered the tenant’s boarding room without giving the required notice, the evidence is less clear. I do not find the behaviour amounts to harassment.
Having found that there has been a breach of the tenant’s right to quiet enjoyment, and taking into account the nature of the breach, duration, and effect on the tenant, compensation of $200.00 is considered reasonable. Ending of the tenancy
The tenant claims the landlord did not give him the correct period of notice when ending the tenancy. He believed he had 90 days for a periodic notice. 9 Residential Tenancy Law in New Zealand S. Benson (2018) 10 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. _477933717
However, under a boarding house tenancy, the landlord is required to give 28 days’ notice to end the tenancy. From the tenant’s evidence, it would appear he was given over 28 days’ notice, his evidence being that his tenancy ended 30 days early. Therefore, this claim is dismissed. Other matters
The tenant states in his application that he felt victimised, by being made to work in exchange for rent. However, his evidence at the hearing is that he continued with this arrangement, because he wanted to live there. Therefore, I make no further findings under this claim. Landlord’s application: 4820288
As noted earlier, the landlord’s application is as follows: • Rent arrears of $18,000.00 • Compensation for use of the kitchen laundry and bathroom • Compensation for storage of the tenant’s belongings, and disposal of goods order • Compensation for property destruction Rent arrears and compensation for use of the kitchen, laundry and bathroom
The landlord claims rent arrears of $18,000 from the tenant. He has relied on various documents, including handwritten calculations and notes. He states that the tenant acknowledged in writing that he owed $9,500.00 on 28 November 2023. Since then, his debt would only have grown as he did almost no work and made no payments. He refers to a handwritten document signed by the parties on 28 November 2023. He notes that the tenant also agreed that he owed 300 hours of work and valued his time at $30 per hour, which equated to $9,000.00. There is also reference to a handwritten note showing the tenant owed $8,000.00 to the landlord in 2022. Compensation for use of the kitchen, laundry and bathroom are also claimed.
In reply, the tenant states that he did various jobs for the landlord and has provided photographic evidence of the work that he did. He showed photographs taken over a period of two years. The work included fitting out a closet space, and a walk-in wardrobe. Sometimes, he would work over 40 hours in a week. _477933718
In response to the tenant’s evidence, the landlord states that the photographs did not show work completed. He maintained that the tenant did not perform enough work at the premises Compensation for storage of belongings
The landlord claims compensation for storage of the tenant’s belongings. However, it appears from the evidence there were disagreements over when the tenant could attend to pick up his belongings. Compensation for property damage
The landlord claims compensation to reinstate work done by the tenant, including a kitchen fit out. It is claimed the tenant installed a kitchen in the garage shortly before the council inspection. The kitchen was hidden from the landlord. This kitchen was not there before 2023. It is also claimed that the tenant damaged the electrical system, which then had to be repaired and re-certified. The landlord has provided an invoice from an electrician for $3,500.00. Can the landlord of an unlawful residential premises be awarded rent or compensation?
While noting the landlord’s claim, section 78A(3) provides that, where a premises is found to be an unlawful residential premises, the Tribunal must not order the tenant to pay rent arrears or compensation to the landlord, unless there are special circumstances that would make it unjust not to do so.
Decisions of the Tribunal in Vodanovich and Carey v Hewitt [2022] NZTT 4284667, 4166477 and Liu v Tenant [2021] NZTT 4295586 took the approach that no rent or compensation was payable because the premises were unlawful residential premises, and there were no special circumstances. In Carey v Hewitt the Tribunal noted that Parliament’s intention is clear that when premises are used for residential tenancies, they must meet minimal standards. If they do not meet those standards and are not able to be lawfully occupied, then no rent should be paid.
Special circumstances have been explained as “wide, comprehensive and flexible words indicating something abnormal, uncommon or out of the ordinary but something less than extraordinary or unique.” See Kidd v Van Heeren (1997) 11 PRNZ 422(CA). I find the facts here are not uncommon or out of the ordinary, and the tenant’s occupation of the premises is not a special circumstance. Therefore, no special circumstances exist in this case to depart from section 78A. _477933719
Consequently, I decline to make any award for rent or compensation to the landlord, and the landlord’s application is dismissed. Disposal of goods
The landlord is obliged to make all reasonable efforts to contact the tenant and agree with the tenant a period within which the tenant is to collect the goods. This is required under section 62 of the RTA. In this case it was unclear whether all reasonable efforts had been made.
However, at an earlier hearing, the parties reached agreement that the tenant was to attend on Wednesday 27 August 2025 to remove the remainder of his belongings. Where the parties have agreed a time and date for the collection of goods, the tenant has an obligation to attend and remove his belongings at the appointed time. The tenant accepts that he did not attend, and overlooked the agreed date and time.
In this case, the Tribunal is prepared to allow the tenant one further opportunity to collect the rest of his belongings, in accordance with the following directions: • The tenant and landlord are to arrange a suitable time and date for the tenant to collect his remaining belongings and goods from the premises, within 5 days of the date of this order. • The tenant is to promptly attend the premises at the agreed time and collect his belongings. The tenant is to ensure the belongings and goods are only removed while the landlord is in attendance at the premises. • Should the items not be removed by the end of the agreed date for collection, the landlord may dispose of the goods left at the premises as the landlord sees fit. Name suppression and filing fee
An application for suppression has been made by the tenant. The Tribunal orders suppression of the tenant’s name and identifying details, in view of the tenant being substantially successful in the proceedings.
The tenant’s request for the filing fee is awarded on the same basis.

Tenancy Tribunal case 4779337 — Exemplary damages

At a glance

Award balance

Tenancy Tribunal case 4779337 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

What is the nature of this tenancy?

RTA

Is the premises an unlawful residential premises?

What is the appropriate remedy?

Were there breaches under section 66I?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

What is the nature of this tenancy?

RTA

Is the premises an unlawful residential premises?

What is the appropriate remedy?

Were there breaches under section 66I?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions