What was Tenancy Tribunal case 4781832 about?

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

How much money was awarded in case 4781832?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4781832?

The primary dispute was Exemplary damages. Related themes: Leaks, Property damage.

Where can I read the official tribunal order for case 4781832?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10886775-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4781832 about?

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

How much money was awarded in case 4781832?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4781832?

The primary dispute was Exemplary damages. Related themes: Leaks, Property damage.

Where can I read the official tribunal order for case 4781832?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10886775-Tribunal_Order_Redacted.pdf.

155 Halsey Drive, Lynfield, Auckland 1042 Tenancy Tribunal Case 4781832 — Exemplary damages

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155 Halsey Drive, Lynfield, Auckland 1042 Tenancy Tribunal Case 4781832 — Exemplary damages | TenantCheck

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name.
JiaYue Xu must pay [The tenant/s] $3,040.44 immediately, comprised of the following: a. $520 for the bond b. $1,000 exemplary damages for failure to lodge the bond with the Bond Centre c. $1,500 for breach of the landlord’s obligations. d. Refund of the filing fee of $20.44 The claim and the prior case
The tenant has applied for a refund of bond from the landlord. The bond was $520.
The tenant also claims damages for: The house (basement where we live) are very dirty. Many place go mouldy because the moist by the leaking house. The main door have no lock (damaged but nver [sic] fixed). No privacy toilet. Illegal shed kitchen also very dirty. The rubbish bins are very close to my window (very smelly). Lots of rats and cockroaches.
The tenant claims that the premises were unlawful and required maintenance during the term of the tenancy.
It is relevant to mention that another tenant at the same property brought a similar application before the Tribunal and orders were made against the landlord on 3 May 2024 (the prior application). 1 The tenant in the present application gave evidence at that hearing as well. The two tenants were friends and their evidence was very similar because the experienced the same issues. The matters were not heard together because the tenant in the current application had filed his application afterwards and in fact his application was listed for case management conference on the day of the hearing of the prior application.
Although I am not strictly speaking bound by the prior findings (the parties are different and so issue estoppel does not arise) they are persuasive unless I can be persuaded to the contrary. In respect to some issues, which may not be consequential, I note they that my factual findings have differed slightly.
The tenancy the subject of this application commenced on 23 March 2023 and ended on 23 August 2023. The weekly rental was $170 per week. The premises
The landlord also resided at the premises, a three-level home, with two of his family members, his wife and one child.
The premises are a two-level home, which has two kitchens, one on the first floor and one on the ground floor. I return to the ground floor “kitchen” below. The top level had a bedroom/living area which was used by the landlord.
The bottom level has three bedrooms and two bathrooms. It had a further split level. You enter the front door and there are a few steps down to create that split level. On that level were four bedrooms.
The tenant lived in a bedroom on the ground split level floor, that bedroom being to his exclusive use. One of the other bedrooms on that floor was occupied by his friend, the applicant in the prior application.
There was a living area on each floor of the premises. The tenant generally used the living area in the downstairs level where he lived and did not know if he could use the other living areas. There were not doors locking the tenant away from other parts of the house.
The tenant said the landlord did not tell him he could not use the other kitchen at the property. That said, the tenant largely used the kitchen on his level. 1
Although I refer to there being a “kitchen” on the ground level, that is perhaps elevating the characteristics of the kitchen facilities on that level to a status they did not deserve.
The ground floor “kitchen” was in fact some sort of external barbecue area that has been partly converted into a kitchen area. There were gas bottles located underneath a sink, a separate oven and a fridge. It appears to be some sort of makeshift cooking area. There was a makeshift roof over the area but the side was open to the elements.
According to the tenant, rats would often be under the sink. Cockroaches were also under the sink.
In terms of the number of residents, the tenant said that there were always 14 people living at the home, including the landlord and 3 of his own family members.
According to the tenant, he believes that Auckland Council paid a visit to the premises and has told the tenant the “kitchen” he was using was illegal and unsafe. The tenant did not produce any corroborating evidence regarding whether the property was illegal.
The tenant experienced many water ingress issues whilst he was at the property. These were as follows: a. After every heavy rain there would always be water leaking up from the bottom of the floor boards. The tenant said you could feel a squish sound when you walked on it. Also, when there was a heavy rain the water would come through the dining room walls. b. The tenant said that the premises were mouldy and he produced a photograph showing his duvet cover with what appears to be multiple mould patches on the exterior. The tenant had put the quilt under the stairs for three months and when he pulled it out it had spores over it and was damp. c. The tenant had to throw the quilt out. He said it cost about $100 but he did not produce any invoice or receipt for that payment.
The tenant would regularly wipe the mould off the dining room walls and there was a mushroom growing up through the dining room floor. There was also mould beside the tenant’s windows. The tenant would try and wipe it off but it was impossible to get it off.
The area appeared to have been freshly repainted over when the tenant moved in. It quickly began to reveal its true character.
The tenant would complain to the landlord and the landlord said that he did not do anything wrong. At the beginning he said he would do repairs but he said he need to wait to summer time.
In the latter stages of the tenancy he agreed to reduce the rent to $145 per week.
The total amount of the rent paid during the tenancy was $2100.
Regarding the front door, one day the tenant noticed that the front door lock was loose and then the landlord removed it so the premises would not be locked at all.
There was then an issue with the carparking. The landlord told the tenant could park his car in the yard. But the tenant realised there was not enough space to park at the property. So he had to park his car on the road. Then, one day he noticed that the radiator was broken; someone had banged into the car. The tenant claimed on his policy of insurance but had an excess that he paid.
Finally, the tenant claims he got itchy skin because of the water condition. He claims that the issues are related but has no evidence from a Doctor to verify this. The position of the landlord
The landlord accepts the floor was leaking as the tenant alleges but says it was only for a few days.
Mr Shu took $520 in bond and did not put the bond at the Bond Centre. He is aware he had a legal obligation to put the bond at the Bond Centre. He thought the tenant would not last long and so did not do so.
The landlord accepts he said the repairs would not be done until summer. He has since repaired the issues himself.
The landlord has owned the property for 2 or 3 years. The only modification he has made to the property since moving in is he put a roof cover for the kitchen area shown in the photograph of the outdoor kitchen, he put the gas stove and gas bottle in. The landlord also installed a plastic sheet as a roof.
The landlord accepts there were rats in the area, he put traps down but found the rats were coming from another property.
The landlord said that there are 8 bedrooms at the property, one on the top floor, three on the first level and four on the ground level. On average he says there are only 5 tenants at the property. He does not rent out all the rooms.
The landlord denies there were ever 14 people living at the property.
The lock to the front door had an issue; the landlord could not find the correct part. It took me two weeks to find the correct part before ethe lock could be fixed.
He landlord says there was an adequate space for the tenant to park, but he did not have the skills to park.
He said when the tenant was moving out, he banged into the gate. No information was provided as to how much this would cost to fix and there was no claim before me for any landlord compensation although the landlord produced an email which showed he had attempted to make a claim in the Disputes tribunal about the matter but his documents had unsurprisingly not been accepted for filing. The issues and relevant legal considerations.
Five issues arise in this case. These are: a) the preliminary jurisdiction issue whether these premises, being a three level house, was being run as a boarding house (and therefore whether s 5(n) of the Residential Tenancies Act 1986 (the RTA) does not preclude jurisdiction of the Tribunal.) b) whether the premises were unlawful, c) whether the landlord failed to maintain and repair the premises, d) Was the bond sent to the Bond Centre? e) what compensation should apply? Standard of proof
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standard of proof. That means that it is for the applicant to establish the facts of their claim on “the balance of probabilities”. They must establish that what they claim is more probable than not. In deciding whether any particular fact is proven, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more probable.
In cases where parties have different versions of events about facts which took place, contemporaneous documents, emails and photographs are often important corroborative evidence to assist the Tribunal in determining what took place. The preliminary jurisdiction issue
Before the substantive issues between the parties can be dealt with, the Tribunal must decide whether it has jurisdiction. If I decide that the Tribunal does not have jurisdiction, then it cannot go on to hear that substantive claim.
Questions of jurisdiction are fundamental and must be decided before the Tribunal can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then I cannot proceed to hear the case.
Section 5(n) of the RTA states that the RTA is precluded: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family
The reason I am required to deal with this issue is that the premises were also resided in by the landlord and two of his family members.
A boarding house tenancy is a separate category of tenancy as defined in the RTA. A boarding house means: 2 • 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: a) That is intended to, or does in fact last, for 28 days or more, b) under which a tenant is granted exclusive rights to occupy particular sweep sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house.
In the High Court decision of Karmarkar v Pandem, 3 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? (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.” 2 S 66B RTA. 3 [2018] NZHC 639

Were the premises a boarding house?

I find that the house contains one or more bedrooms with areas for communal use.
I accept the evidence of the applicant that there were well over 6 people living at this property independent of the landlord at any given time. I found the tenant to be a clear and reliable witness and I accept his evidence.
The tenancy lasted for 28 days or more. The applicant had exclusive rights to his own bedroom.
This was a boarding house tenancy. The RTA is not excluded.

Are the premises unlawful?

The second issue I must decide, since I have decided that these premises were a boarding house tenancy (meaning that the RTA is not excluded), is whether the premises are unlawful. Section 78A of the RTA gives the Tenancy Tribunal power to make a range of orders if the evidence before the Tribunal establishes that the premises are, or were at any material time, “unlawful residential premises”.
“Unlawful residential premises” is defined as: “Residential premises that are used for occupation for a person as a place of residence but – (a) That cannot be lawfully occupied for residential purposes by that person (whether generally or whether for the particular residential purposes 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 s 66I(1)(c) has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
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) of the RTA provides 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.
The Tribunal has on many prior occasions considered whether or not premises are unlawful for the purposes of s 78A of the RTA. The “step one” of determining whether premises are unlawful is there needs to be a finding that the property cannot lawfully be occupied for residential purposes. This first step involves making a finding that the whole property has some sort of regulatory failure which means it cannot be occupied as a residential dwelling. In other words, the unlawfulness has been more than, say, just an “outstanding permit for a bathroom”. 4

Are the premises unlawful?

The premises itself comprises the full house. I have considered whether the premises was just the split level. The evidence on this point was somewhat jumbled, and I am mindful of the findings I have made in the similar case. But it seems there were bathrooms that were communal and the makeshift kitchen area at least that was communal.
There was no Council file, no correspondence from Council, or other information of the like that the Tribunal regularly encounters in such cases that touched on the issue of unlawfulness. A couple of photographs is simply not adequate.
The applicant’s claim that the premises are unlawful fails, for lack of any corroborating evidence.

Has the landlord breached their obligations of repair and maintenance?

I find that the landlord is in significant breach of his obligations to the applicant under s 66I(1)(a) to (c) of the RTA in the following resects: (a) The makeshift kitchen area is in a poor state of repair and is outdoors. It should not be used for general cooking, preparing food and washing dishes. The floor is actually the concrete pavers from outside. It is no wonder there was a rat and cockroach problem at the property. (b) I find that the premises has suffered from water ingress issues, which were not fixed and which caused a mushroom to grow through the floor. In order for a mushroom to grow inside a property up from the floor, there is clearly a problem with maintenance. A mushroom does not grow just from a few heavy rains. It is indicative of consistent and steady dampness. Mould spores do not simply appear on quilts that are store indoors overnight for no reason. The premises were clearly damp and mouldy, due to the consistent water ingress. (c) I accept the evidence of the applicant that the premises suffered from a rat and cockroach problem. This is unacceptable. (d) I accept the front door would not lock for a period of time.
I award the applicant $1500 overall compensation for damages as a result of these breaches of obligation by the landlord.
I do not award any compensation regarding the damage to the car. Such damage is far too remote from any breach (assuming there was one). The bond 4 See Mansfield v Silk and another [2020] NZ TT 4246581, at [16].
The bond was not lodged at the Bond Centre. I find this to be an unlawful act.
Section 109 of the RTA provides that where a party to a tenancy agreement has committed an unlawful act, the Tribunal may award exemplary damages (in the nature of a penalty) where it is satisfied that: (i) the unlawful act was committed intentionally and (ii) having regard to the criteria set out in section 109(3) RTA such an award would be "just".
The landlord did not assert he was unaware that the bond needed to be lodged. He simply said he thought this would be a short-term tenancy so therefore he did not lodge the bond.
I do not accept this to be an acceptable explanation. The landlord knew the bond needed to be lodged. The tenants had intended to stay there a long time.
I am concerned at the landlord’s blasé attitude generally towards his obligations as a landlord and no just the bond. The state of the premises, the dampness issues, the rats and the cockroaches are indicative of a landlord with little regard for his tenants.
The applicant has not received the bond of $520 back. This must be repaid.
I consider this an appropriate case to award $1000 exemplary damages for failure to lodge the bond. The landlord clearly knew the bond had to be lodged but did not do so. The bond is the tenant’s money and must be lodged with the Bond Centre. Landlords must take their obligations in this regard seriously and the landlord was not entitled to reach the decision to not comply with his legal obligations.
Given the tenant has succeeded in this case, I refund the filing fee and I consider that suppression should be awarded of the tenant. D Watson 27 September 2024

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name.
JiaYue Xu must pay [The tenant/s] $3,040.44 immediately, comprised of the following: a. $520 for the bond b. $1,000 exemplary damages for failure to lodge the bond with the Bond Centre c. $1,500 for breach of the landlord’s obligations. d. Refund of the filing fee of $20.44 The claim and the prior case
The tenant has applied for a refund of bond from the landlord. The bond was $520.
The tenant also claims damages for: The house (basement where we live) are very dirty. Many place go mouldy because the moist by the leaking house. The main door have no lock (damaged but nver [sic] fixed). No privacy toilet. Illegal shed kitchen also very dirty. The rubbish bins are very close to my window (very smelly). Lots of rats and cockroaches.
The tenant claims that the premises were unlawful and required maintenance during the term of the tenancy.
It is relevant to mention that another tenant at the same property brought a similar application before the Tribunal and orders were made against the landlord on 3 May 2024 (the prior application). 1 The tenant in the present application gave evidence at that hearing as well. The two tenants were friends and their evidence was very similar because the experienced the same issues. The matters were not heard together because the tenant in the current application had filed his application afterwards and in fact his application was listed for case management conference on the day of the hearing of the prior application.
Although I am not strictly speaking bound by the prior findings (the parties are different and so issue estoppel does not arise) they are persuasive unless I can be persuaded to the contrary. In respect to some issues, which may not be consequential, I note they that my factual findings have differed slightly.
The tenancy the subject of this application commenced on 23 March 2023 and ended on 23 August 2023. The weekly rental was $170 per week. The premises
The landlord also resided at the premises, a three-level home, with two of his family members, his wife and one child.
The premises are a two-level home, which has two kitchens, one on the first floor and one on the ground floor. I return to the ground floor “kitchen” below. The top level had a bedroom/living area which was used by the landlord.
The bottom level has three bedrooms and two bathrooms. It had a further split level. You enter the front door and there are a few steps down to create that split level. On that level were four bedrooms.
The tenant lived in a bedroom on the ground split level floor, that bedroom being to his exclusive use. One of the other bedrooms on that floor was occupied by his friend, the applicant in the prior application.
There was a living area on each floor of the premises. The tenant generally used the living area in the downstairs level where he lived and did not know if he could use the other living areas. There were not doors locking the tenant away from other parts of the house.
The tenant said the landlord did not tell him he could not use the other kitchen at the property. That said, the tenant largely used the kitchen on his level. 1
Although I refer to there being a “kitchen” on the ground level, that is perhaps elevating the characteristics of the kitchen facilities on that level to a status they did not deserve.
The ground floor “kitchen” was in fact some sort of external barbecue area that has been partly converted into a kitchen area. There were gas bottles located underneath a sink, a separate oven and a fridge. It appears to be some sort of makeshift cooking area. There was a makeshift roof over the area but the side was open to the elements.
According to the tenant, rats would often be under the sink. Cockroaches were also under the sink.
In terms of the number of residents, the tenant said that there were always 14 people living at the home, including the landlord and 3 of his own family members.
According to the tenant, he believes that Auckland Council paid a visit to the premises and has told the tenant the “kitchen” he was using was illegal and unsafe. The tenant did not produce any corroborating evidence regarding whether the property was illegal.
The tenant experienced many water ingress issues whilst he was at the property. These were as follows: a. After every heavy rain there would always be water leaking up from the bottom of the floor boards. The tenant said you could feel a squish sound when you walked on it. Also, when there was a heavy rain the water would come through the dining room walls. b. The tenant said that the premises were mouldy and he produced a photograph showing his duvet cover with what appears to be multiple mould patches on the exterior. The tenant had put the quilt under the stairs for three months and when he pulled it out it had spores over it and was damp. c. The tenant had to throw the quilt out. He said it cost about $100 but he did not produce any invoice or receipt for that payment.
The tenant would regularly wipe the mould off the dining room walls and there was a mushroom growing up through the dining room floor. There was also mould beside the tenant’s windows. The tenant would try and wipe it off but it was impossible to get it off.
The area appeared to have been freshly repainted over when the tenant moved in. It quickly began to reveal its true character.
The tenant would complain to the landlord and the landlord said that he did not do anything wrong. At the beginning he said he would do repairs but he said he need to wait to summer time.
In the latter stages of the tenancy he agreed to reduce the rent to $145 per week.
The total amount of the rent paid during the tenancy was $2100.
Regarding the front door, one day the tenant noticed that the front door lock was loose and then the landlord removed it so the premises would not be locked at all.
There was then an issue with the carparking. The landlord told the tenant could park his car in the yard. But the tenant realised there was not enough space to park at the property. So he had to park his car on the road. Then, one day he noticed that the radiator was broken; someone had banged into the car. The tenant claimed on his policy of insurance but had an excess that he paid.
Finally, the tenant claims he got itchy skin because of the water condition. He claims that the issues are related but has no evidence from a Doctor to verify this. The position of the landlord
The landlord accepts the floor was leaking as the tenant alleges but says it was only for a few days.
Mr Shu took $520 in bond and did not put the bond at the Bond Centre. He is aware he had a legal obligation to put the bond at the Bond Centre. He thought the tenant would not last long and so did not do so.
The landlord accepts he said the repairs would not be done until summer. He has since repaired the issues himself.
The landlord has owned the property for 2 or 3 years. The only modification he has made to the property since moving in is he put a roof cover for the kitchen area shown in the photograph of the outdoor kitchen, he put the gas stove and gas bottle in. The landlord also installed a plastic sheet as a roof.
The landlord accepts there were rats in the area, he put traps down but found the rats were coming from another property.
The landlord said that there are 8 bedrooms at the property, one on the top floor, three on the first level and four on the ground level. On average he says there are only 5 tenants at the property. He does not rent out all the rooms.
The landlord denies there were ever 14 people living at the property.
The lock to the front door had an issue; the landlord could not find the correct part. It took me two weeks to find the correct part before ethe lock could be fixed.
He landlord says there was an adequate space for the tenant to park, but he did not have the skills to park.
He said when the tenant was moving out, he banged into the gate. No information was provided as to how much this would cost to fix and there was no claim before me for any landlord compensation although the landlord produced an email which showed he had attempted to make a claim in the Disputes tribunal about the matter but his documents had unsurprisingly not been accepted for filing. The issues and relevant legal considerations.
Five issues arise in this case. These are: a) the preliminary jurisdiction issue whether these premises, being a three level house, was being run as a boarding house (and therefore whether s 5(n) of the Residential Tenancies Act 1986 (the RTA) does not preclude jurisdiction of the Tribunal.) b) whether the premises were unlawful, c) whether the landlord failed to maintain and repair the premises, d) Was the bond sent to the Bond Centre? e) what compensation should apply? Standard of proof
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standard of proof. That means that it is for the applicant to establish the facts of their claim on “the balance of probabilities”. They must establish that what they claim is more probable than not. In deciding whether any particular fact is proven, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more probable.
In cases where parties have different versions of events about facts which took place, contemporaneous documents, emails and photographs are often important corroborative evidence to assist the Tribunal in determining what took place. The preliminary jurisdiction issue
Before the substantive issues between the parties can be dealt with, the Tribunal must decide whether it has jurisdiction. If I decide that the Tribunal does not have jurisdiction, then it cannot go on to hear that substantive claim.
Questions of jurisdiction are fundamental and must be decided before the Tribunal can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then I cannot proceed to hear the case.
Section 5(n) of the RTA states that the RTA is precluded: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family
The reason I am required to deal with this issue is that the premises were also resided in by the landlord and two of his family members.
A boarding house tenancy is a separate category of tenancy as defined in the RTA. A boarding house means: 2 • 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: a) That is intended to, or does in fact last, for 28 days or more, b) under which a tenant is granted exclusive rights to occupy particular sweep sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house.
In the High Court decision of Karmarkar v Pandem, 3 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? (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.” 2 S 66B RTA. 3 [2018] NZHC 639

Were the premises a boarding house?

I find that the house contains one or more bedrooms with areas for communal use.
I accept the evidence of the applicant that there were well over 6 people living at this property independent of the landlord at any given time. I found the tenant to be a clear and reliable witness and I accept his evidence.
The tenancy lasted for 28 days or more. The applicant had exclusive rights to his own bedroom.
This was a boarding house tenancy. The RTA is not excluded.

Are the premises unlawful?

The second issue I must decide, since I have decided that these premises were a boarding house tenancy (meaning that the RTA is not excluded), is whether the premises are unlawful. Section 78A of the RTA gives the Tenancy Tribunal power to make a range of orders if the evidence before the Tribunal establishes that the premises are, or were at any material time, “unlawful residential premises”.
“Unlawful residential premises” is defined as: “Residential premises that are used for occupation for a person as a place of residence but – (a) That cannot be lawfully occupied for residential purposes by that person (whether generally or whether for the particular residential purposes 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 s 66I(1)(c) has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
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) of the RTA provides 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.
The Tribunal has on many prior occasions considered whether or not premises are unlawful for the purposes of s 78A of the RTA. The “step one” of determining whether premises are unlawful is there needs to be a finding that the property cannot lawfully be occupied for residential purposes. This first step involves making a finding that the whole property has some sort of regulatory failure which means it cannot be occupied as a residential dwelling. In other words, the unlawfulness has been more than, say, just an “outstanding permit for a bathroom”. 4

Are the premises unlawful?

The premises itself comprises the full house. I have considered whether the premises was just the split level. The evidence on this point was somewhat jumbled, and I am mindful of the findings I have made in the similar case. But it seems there were bathrooms that were communal and the makeshift kitchen area at least that was communal.
There was no Council file, no correspondence from Council, or other information of the like that the Tribunal regularly encounters in such cases that touched on the issue of unlawfulness. A couple of photographs is simply not adequate.
The applicant’s claim that the premises are unlawful fails, for lack of any corroborating evidence.

Has the landlord breached their obligations of repair and maintenance?

I find that the landlord is in significant breach of his obligations to the applicant under s 66I(1)(a) to (c) of the RTA in the following resects: (a) The makeshift kitchen area is in a poor state of repair and is outdoors. It should not be used for general cooking, preparing food and washing dishes. The floor is actually the concrete pavers from outside. It is no wonder there was a rat and cockroach problem at the property. (b) I find that the premises has suffered from water ingress issues, which were not fixed and which caused a mushroom to grow through the floor. In order for a mushroom to grow inside a property up from the floor, there is clearly a problem with maintenance. A mushroom does not grow just from a few heavy rains. It is indicative of consistent and steady dampness. Mould spores do not simply appear on quilts that are store indoors overnight for no reason. The premises were clearly damp and mouldy, due to the consistent water ingress. (c) I accept the evidence of the applicant that the premises suffered from a rat and cockroach problem. This is unacceptable. (d) I accept the front door would not lock for a period of time.
I award the applicant $1500 overall compensation for damages as a result of these breaches of obligation by the landlord.
I do not award any compensation regarding the damage to the car. Such damage is far too remote from any breach (assuming there was one). The bond 4 See Mansfield v Silk and another [2020] NZ TT 4246581, at [16].
The bond was not lodged at the Bond Centre. I find this to be an unlawful act.
Section 109 of the RTA provides that where a party to a tenancy agreement has committed an unlawful act, the Tribunal may award exemplary damages (in the nature of a penalty) where it is satisfied that: (i) the unlawful act was committed intentionally and (ii) having regard to the criteria set out in section 109(3) RTA such an award would be "just".
The landlord did not assert he was unaware that the bond needed to be lodged. He simply said he thought this would be a short-term tenancy so therefore he did not lodge the bond.
I do not accept this to be an acceptable explanation. The landlord knew the bond needed to be lodged. The tenants had intended to stay there a long time.
I am concerned at the landlord’s blasé attitude generally towards his obligations as a landlord and no just the bond. The state of the premises, the dampness issues, the rats and the cockroaches are indicative of a landlord with little regard for his tenants.
The applicant has not received the bond of $520 back. This must be repaid.
I consider this an appropriate case to award $1000 exemplary damages for failure to lodge the bond. The landlord clearly knew the bond had to be lodged but did not do so. The bond is the tenant’s money and must be lodged with the Bond Centre. Landlords must take their obligations in this regard seriously and the landlord was not entitled to reach the decision to not comply with his legal obligations.
Given the tenant has succeeded in this case, I refund the filing fee and I consider that suppression should be awarded of the tenant. D Watson 27 September 2024

Tenancy Tribunal case 4781832 — Exemplary damages at 155 Halsey Drive, Lynfield, Auckland 1042

Tenancy Tribunal case 4781832 — Exemplary damages at 155 Halsey Drive, Lynfield, Auckland 1042

Order

Were the premises a boarding house?

Are the premises unlawful?

Are the premises unlawful?

Has the landlord breached their obligations of repair and maintenance?

Order

Were the premises a boarding house?

Are the premises unlawful?

Are the premises unlawful?

Has the landlord breached their obligations of repair and maintenance?