What was the outcome of Tenancy Tribunal case 4782614?

The tribunal order states: The tenancy is a residential tenancy. The tenancy is subject to the Residential

How much money was awarded in case 4782614?

Compensation: Bond: $600.00 awarded to tenant; Compensation: unlawful residential p…: $2,000.00 awarded to tenant; Compensation: Unlawful Termination: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4782614?

The dispute type was not classified.

Where can I read the official tribunal order for case 4782614?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10348827-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4782614?

The tribunal order states: The tenancy is a residential tenancy. The tenancy is subject to the Residential

How much money was awarded in case 4782614?

Compensation: Bond: $600.00 awarded to tenant; Compensation: unlawful residential p…: $2,000.00 awarded to tenant; Compensation: Unlawful Termination: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4782614?

The dispute type was not classified.

Where can I read the official tribunal order for case 4782614?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10348827-Tribunal_Order.pdf.

141 Waipuna Road East, Mount Wellington, Auckland 1060 Tenancy Tribunal Case 4782614 — Tenancy dispute

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141 Waipuna Road East, Mount Wellington, Auckland 1060 Tenancy Tribunal Case 4782614 — Tenancy dispute | TenantCheck

Claims & awards

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

Claims and awards in Tenancy Tribunal application 4782614 — net $4,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: bond	$600.00	bond
Compensation: unlawful termination	$1,500.00	unlawful termination
Compensation: unlawful residential premises	$2,000.00	unlawful residential premises
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,120.44
Total payable by Landlord to Tenant	$4,120.44

Claims and awards for application 4782614 — net $4,120.44 NZD. Verify on MoJ.

Compensation: bond

Amount: $600.00
Awarded to: Tenant
Reason: bond

Compensation: unlawful termination

Amount: $1,500.00
Awarded to: Tenant
Reason: unlawful termination

Compensation: unlawful residential premises

Amount: $2,000.00
Awarded to: Tenant
Reason: unlawful residential premises

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $4,120.44

Total payable by Landlord to Tenant

Tenant $4,120.44

Claim types — money lines allowed on this order

Compensation Filing Fee

Order

The tenancy is a residential tenancy. The tenancy is subject to the Residential Tenancies Act 1986 and the jurisdiction of the Tribunal.
The premises is an unlawful residential premises.
Mike Poole As the Trustee for The Poole Family Trust must pay Warwick Rolf Beauchamp $4,120.44 immediately, calculated as shown in table below. DescriptionTenant Compensation: bond$600.00 Compensation: unlawful termination$1,500.00 Compensation: unlawful residential premises$2,000.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$4,120.44
The landlord’s cross applications are dismissed.

Reasons

Both parties attended the hearings.
The tenant seeks refund of his bond, compensation/exemplary damages for the failure to lodge the bond, unlawful termination of the tenancy, and the premises being an unlawful residential premises.
The landlord challenged the jurisdiction of the Tribunal, arguing that this is not a residential tenancy, rather it is a flatmate situation to which section 5(1)(n) applies. Without prejudice to that challenge, he also applied for compensation and reimbursement of the filing fee following the end of the tenancy. Procedural background
The hearing was held in two parts. The initial hearing was via teleconference and related to jurisdiction alone.
When it was clear that further evidence was required for the jurisdiction question, and that there was a cross-over of witnesses with the substantive matters, I convened a face-to-face hearing to complete all matters.
The landlord indicated that if I concluded the Tribunal had jurisdiction, he would file a cross-claim. In order to resolve all matters expediently, I invited the landlord to file his cross application, without prejudice to his jurisdiction challenge. He did so.
As both parties made reference to Police attendance at the address, and various allegations of criminal conduct, a summons was served in Inspector Jim Wilson, Auckland Central Area Commander, directing production of various documents.
These were received and seen by me. The contents of the relevant documents was disclosed to the parties orally. That evidence is subject to a non-publication order pursuant to s95A(4).
The material not disclosed is not relevant and is not to be disclosed to anyone as it does not form part of the evidence in this case.
I am grateful to the New Zealand Police for their co-operation in this matter, particularly given the short timeframes in which the material was provided. Background
The background to the arrangement is largely agreed.
The premises is a large dwelling, surrounded by a number of smaller buildings, some of which are used for residential purposes.
The main dwelling is in two parts. Plans of that dwelling were provided to me by the tenant. One larger part is described on the plans as the “existing house” (“the house”) and the smaller part as the “conservatory”. The tenant lived in the conservatory, which had a bedroom, study, living area, kitchenette and wash house. The conservatory has a separate entrance. Paul Nelson and his son lived in the house, which contained bedrooms, a living area, bathroom and kitchen.
There is a door between the conservatory and the house, but it was blocked during the tenancy.
The landlord owns the premises, but does not reside there full time. He is at the premises for work, and often stays over on Thursdays when he is working in the central city.
The parties agree the following: a. There was shared power and water, which was included in their rent. b. The tenant had a separate internet connection to Mr Nelson and his son. c. The tenant has a separate set of gas bottles for the conservatory that he was responsible for filling. The house had a its own gas supply. d. The were no shared living spaces, no share meals or social interactions. e. The tenant did not have a key to the house, and the occupants of the house do not have keys to the conservatory. f. Both parties agreed that if they were to go to the others portion of the dwelling, they would knock on the door and wait to be invited in. g. There was one total rent for the premises, which was split depending on occupancy. h. The tenant paid rent directly to the landlord.
Mr Nelson had been living in the premises for about 18 years. Initially he lived in the conservatory and there was a family living in the house. When that family moved out, he moved into the house with his son.
The landlord agreed that when the family lived in the house, they had a separate tenancy. However, the Council inspected the property and issued a “notice to fix” noting that the conservatory could not be tenanted as a separate unit due, amongst other things, to the lack of firewall between the two parts of the house. The landlord was told that the door between the parts of the house needed to remain unlocked and usable. The landlord was also required to seek consent for the kitchenette in the conservatory and a drain.
The Council confirmed by email date 11 April 2022 that those conditions had been complied with.
The landlord says this is why the conservatory was occupied by the tenant as a flatmate of Mr Nelson, and less often, himself.
The tenant says that he was told he could shut the door between the parts and put his fridge against it after the Council had inspected for compliance with the notice to fix. That is why he blocked the door between the parts of the house during the tenancy.
There is no written agreement.
The tenant is a friend of Mr Nelson’s brother. When Mr Nelson was looking for flatmates, he asked his brother to move in. His brother declined, but suggested the tenant move in instead. The tenant made the arrangements directly with the landlord. The tenant says this was because the landlord was who he was contracting with. The landlord says that Mr Nelson was responsible for choosing the occupants of the premises, and the arrangements were only with him on this occasion because Mr Nelson was overseas.
The tenant is adamant that he did not intend to be a flatmate. He wanted to live alone, and the conservatory suited him for that.
The landlord is adamant that this was to be a flatmate situation given the Council’s warnings about not tenanting the conservatory as a separate unit.
The tenant moved into the premises on 2 February 2022. The tenancy ended on 16 November 2023. The applications to the Tribunal followed.
There is not a significant volume of contemporaneous material to assist me in determining the various claims, and on important points the parties’ evidence was entirely at odds. On those occasions I have had to determine the dispute based on my assessment of each party/witness’s credibility, and whether I accept their evidence on each point either in whole or in part.
The onus remains on the applicants for each portion of the claim and cross claim. The standard is the balance of probabilities, in other words, is it more likely than not that something happened or did not happen.
On the whole, I found the tenant to be a credible and forthright witness. He was upfront about matters, including matters which did not support his position. His evidence was consistent with the contemporaneous material that was available to me. The tenant generally remained easily calmed, even in the face of provocative comments from the landlord and Mr Nelson.
By contrast, I found the landlord to be a less than compelling witness. His evidence varied on certain points between the hearing today and the previous telephone hearing, and also within the hearing today. The landlord had a tendency to speak over me when he disagreed and used tone, volume and body language aggressively to do so. The landlord displayed an attitude of scant regard for the Tribunal process and the tenant which was reflected in the level of detail he provided in evidence and his manner of responding to the tenant’s claims and in advancing his own.
Overall, I found Mr Nelson to be a credible witness, albeit one who was taking his lead from the landlord.

Is this a residential tenancy?

The parties seek a determination from the Tribunal as to whether this tenancy is a residential tenancy (the tenant’s position) or a flatmate arrangement, excluded from the Act by section 5(1)(n) (the landlord’s position).
For the reasons outlined below, I am not satisfied that s5(1)(n) applies. Accordingly, this is a residential tenancy to which the Act applies. The Law
Section 4 provides that This Act applies to every tenancy for residential purposes except as specifically provided.
The exceptions to the Act are contained in Section 5. Relevantly, section 5(1)(n) of the Act provides that 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.
“Residential premises” is defined in section 2(1) of the Act as any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.
“Premises” is defined in section 2 of that Act as including: (a) Any part of any premises; and (b) Any land and appurtenances, other than facilities; and (c) Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land.
Section 10 of the Act provides that Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
So, in the present case, the landlord must prove, on the balance of probabilities, that section 5(1)(n) applies. Caselaw
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.

Were the premises occupied as a separate household unit?

The tenant had very little interaction with the landlord. As stated, there were shared utilities, but other than that the tenant and landlord lived independently.
As the dwelling is a building, the requirements of the Building Act 2004 (“the Building Act”) apply to it.
One of the types of buildings categorised in the Building Act is called a “household unit”.
A household unit is defined in section of 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”
The Tenancy Tribunal deals predominantly with household units (with the exception of boarding houses).
The question of whether a premises is a separate household unit arose in the recent High Court decision Harding v Schellevis & Ors [2021] NZHC 1265.
In that case, the landlord entered into a “flatmate/house-sharing agreement” with the tenants, which expressly recorded an acknowledgement that the premises were the primary residence of the landlord’s family and that therefore the Act did not apply (see section 5(n) exclusion).
However, the Auckland Council previously confirmed to the landlord that the premises could not be tenanted as a separate household unit (e.g., no fire rated walls etc).
Analysing the factual situation, the Tribunal determined that the Act did apply and that the building consisted of two separate and distinct household units.
The landlord appealed that finding to the District Court, which confirmed the Tribunal’s finding, and dismissed the landlord’s appeal.
The landlord then appealed to the High Court and the High Court confirmed both the District Court and Tribunal’s decision.
Justice Walker in the High Court determined that: a.the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b.residential premises can include part of any premises used or intended for occupation as a place of residence; c.the Act supports a generous approach to jurisdiction for the tribunal and conversely a strict approach to exceptions; d.the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.” Analysis
Determination of whether the exceptions in section 5 of the Act apply are fact specific.
I consider that I am bound by the findings as to the law of the High Court in Harding v Schellevis & Ors and the District Court in Adams v Massey University.
I also consider the definition of “flatmates” set out by the District Court in Musson v Dobrisek CIV-2006-032-36, 5 May 2006, is useful. The Court noted, at paragraph [22]: By 'flatmates' I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.
Section 11 of the Act prohibits the parties from contracting out of the Act. The Act applies, and the Tribunal has jurisdiction, unless one of the exceptions in section 5 applies. Accordingly, I must determine the nature of the relationship as a matter of fact.
Complicating matters slightly in this case, is the fact that the landlord does not live at the premises full time. So, there are three possible outcomes for this matter – a. There is one tenancy. Mr Nelson is the “head tenant” and the tenant is his flatmate (which is the landlord’s position). b. There is a residential tenancy, Mr Nelson is the sublandlord of the tenant. c. There is a residential tenancy, with the landlord directly (this is the tenant’s position).
If the house as a whole was the relevant “premises” then I would easily conclude that the tenant was a flatmate of Mr Nelson. This would be on the basis that the Mr Nelson, as head tenant is the “landlord” for the purposes of section 5(1)(n), which I accept would apply in that case.
However, I find that is not the case, rather I consider that the conservatory is a separate premise to the rest of the house. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”
The factors in favour of this are the separate entrance, facilities and living areas. There was no communal living, or shared space. I accept the evidence that the tenant was not entitled to access the house and the occupants of the house had no access to the conservatory.
While this was physically one building, there were two separate and distinct household units within that building.
Accordingly, the relevant “premises” for the purposes of section 5(1)(n) is the conservatory only.
The question, then, is whether the conservatory “continue[d] 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.”
It is clear that conservatory was not used principally as a place of residence for the landlord or a member of his family.
Bearing in mind the above, my finding in this proceeding is that the tenant occupied the conservatory as “a self-contained separate household unit”.
Accordingly, section 5(1)(n) does not apply. The tenancy is a residential tenancy, subject to the provisions of the Act and the Jurisdiction of the Tribunal.
The question then, is who is the landlord – is it Mr Poole or Mr Nelson?
The landlord’s position is that Mr Nelson was responsible for choosing the occupants for the premises.
However, on this occasion, beyond the introduction to the tenant, which came via Mr Nelson, all arrangements were made between the landlord and tenant directly. The tenant paid rent directly to the landlord, and the landlord communicated directly with the tenant about all matters, including the termination of the tenancy.
The tenant believed he was contracting with Mr Poole directly.
Further, Mr Poole maintained a clear level of authority within the relationships. While Mr Nelson was given considerable input, I consider it more likely than not that Mr Poole had the ultimate authority over decisions around the letting of the premises.
Accordingly, I find that Mr Poole is that landlord and Mr Beauchamp in the tenant.

Is the premises an unlawful residential premises?

Section 78A(2) of the Act states: For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), ..., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 36 of the Act 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.
Section 45(1)(c) states that: (1)The landlord shall – ..... (c) Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;
The conservatory occupied by the tenant is clearly a residential premises, in that it is a part of the premises, used for occupation as a place of residence. Put simply, it was intended that the tenant live in the premises, and the tenant did, in fact, live there.
The question is whether the premises can be lawfully occupied as residential premises, either generally or for the particular residential purposes for which the tenant occupied it, and whether the landlord’s failure to comply with either section 35 or section 45(1)(c) caused or contributed to the unlawfulness of the occupation.
In the present case, the particular residential purposes concerned is the occupation of the premises as a second household unit, separate to the top part of the building.
While the premises can be occupied, generally, for residential purposes, as the building as a whole has Council consent for residential use, an issue arises when looking at the division of the premises into two separate household units.
Given both limbs of section 78A(2) must be satisfied before a premises is deemed an unlawful residential premises, it is useful to consider section 36 and 45(1)(c) when considering whether the use of the premises in this particular manner is unlawful, as if the occupation of the premises is unlawful as a result of either section, it will be likely that the landlord’s failure to comply with those sections contributed to the unlawfulness of the occupation.
Section 45(1)(c), in this case, requires consideration of whether then landlord has complied with the provisions of the Building Act 2004, in particular, sections 40, 114 and 115 of that Act.
Section 40 of the Building Act states that a household unit, being a building intended for residential occupation, must have a building consent and be certified as being compliant by having a code compliance certificate.
If it has neither, or a building consent only, then pursuant to the Act, it is an unlawful residential premises.
Sections 114 and 15 deal with the change of use of consented buildings.
Section 114 of the Building Act requires the owner to give notice of a change of use of the building, and makes failure to do so an offence.
Section 115 of the Building Act provides that an owner of a building must not change the use of the building – (a) in a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use, will comply, as nearly as is reasonably practicable, with the building code in all respects; and (b) in any other case, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use,— (i) will comply, as nearly as is reasonably practicable, with every provision of the building code that relates to the following: (A) means of escape from fire, protection of other property, sanitary facilities, structural performance, and fire-rating performance: (B) access and facilities for persons with disabilities (if this is a requirement under section 118); and (ii) will,— (A) if it complied with the other provisions of the building code immediately before the change of use, continue to comply with those provisions; or (B) if it did not comply with the other provisions of the building code immediately before the change of use, continue to comply at least to the same extent as it did then comply.
To determine whether there has been a change in the use of a building, consideration must be given to the Buildings (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 (“the regulations”).
Change the use is defined in the regulations as: ...to change the use (determined in accordance with regulation 6) of all or a part of the building from one use (the old use) to another (the new use) and with the result that the requirements for compliance with the building code in relation to the new use are additional to, or more onerous than, the requirements for compliance with the building code in relation to the old use.
Regulation 6 states that every building or part of a building has a use as specified in the table in schedule 2 of the regulations.
The following uses in schedule 2 of the regulations are relevant for residential purposes: SA (Sleeping Accommodation)spaces providing transient accommodation, or where limited assistance or care is provided for people motels, hotels, hostels, boarding houses, clubs (residential), boarding schools, dormitories, halls, wharenui SR (sleeping Residential)attached and multi-unit residential dwellings, including household units attached to spaces or dwellings with the same or other uses, such as caretakers' flats, and residential accommodation above a shop multi-unit dwellings, flats, or apartments SH (Sleeping Single Home)detached dwellings where people live as a single household or family, including attached self- contained spaces such as granny flats when occupied by a member of the same family, and garages (whether detached or part of the same building) if primarily for storage of the occupants' vehicles, tools, and garden implements dwellings or houses separated from each other by distance
The premises, in the present case, is consented as an “SH – sleeping single home” use containing a single household unit.
The division of the building into two household units would make it an “SR – sleeping residential” use, namely 2 attached separate household units being occupied by two separate households.
Accordingly, I consider this to be a change to the use of the building to which section 115 of the Building Act applies and the owner was required to obtain written notice from the Counsel that the building, in its new use, will comply with the Building Code.
There is no evidence of such written notice, nor is there evidence that the conversion of the premises into two flats was consented by the Council or compliant with the Building Code. In fact, the Council served a notice on the landlord in 2021 prohibiting the use of the conservatory a separate household unit as there was no firewall between two premises.
Accordingly, I consider that the landlord has not complied with the Building Act, and consequently has failed to comply with section 45(1)(c) of the Act.
The failure to obtain consent to divide the premises into two household units, in my view, makes occupation of it in that particular manner, unlawful.
Accordingly, the premises is an unlawful residential premises.
Returning then, to section 78A of the Act. Section 78A provides that where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order.
The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so.
The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements.

Are there special circumstances warrant a reduction in the amount awarded?

Section 78A of the Act was introduced in 2017 in response to two High Court decisions relating to the jurisdiction of the Tribunal to determine applications relating to unlawful residential premises. At the time of introduction of the Bill, the then-Minister for Building and Constructions, the Hon Nick Smith made reference to what he described as the “abhorrent” practice of renting out unconsented, non- compliant and unsafe properties to tenants. He noted: So the purpose of this part of the bill is to ensure that where landlords do rent out inappropriate properties, there is the capacity to hold those landlords to account. ... My view is that the amendments in this bill that make it plain that the tribunal has full jurisdiction over unlawful residential premises will strengthen the regulatory environment and ensure that those people who attempt to rent out such properties are held accountable.”
I consider that the public policy behind the introduction of section 78A is: a.To hold landlords to account for choosing to expose tenants to the health and safety risks of renting out unconsented or non-compliant properties; b.To disincentivise the practice; and c.To ensure landlords don’t profit from the practice.
That said, by allowing the Tribunal to the discretion to reduce the amount awarded to tenants under s78A, I consider that Parliament intended there to be a distinction be drawn between premises that were unlawful on the basis of some type of regulatory technicality, but which were otherwise safe, healthy homes, and those property which created risks to health and safety.
In the present case, I consider that the amount order should be reduced to take into account the fact that the premises is consented for residential purposes, and the tenant has had the benefit of some utility from the occupation of the premises almost two years. He liked living there and had he not been evicted, would have continued to live there.
I note that none of the tenant’s other claims relate to the condition of the premises. Accordingly, there is no evidence to suggest that the conservatory was anything other than a comfortable home for the tenant for the duration of his tenancy.
I consider that a reduction in the amount awarded is appropriate to reflect the utility to the tenant, and the fact that none of the tenant’s other claims related to the condition of the premises. Rather than calculate this as a portion, I consider a global award of compensation for the unlawful nature of the premises is the best approach. I award $2,000.00 compensation to the tenant. Exemplary damages generally
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a.The intent of the person committing the unlawful act. b.The effect of the unlawful act. c.The interests of the landlord or tenant against whom the unlawful act was committed. d.The public interest; and e.Whether it is just to make the award. Bond
The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord dispute that a bond was paid by the tenant.
The tenant says that he paid $600 to the landlord for the first two weeks rent. He was then told he had to pay a further two weeks rent ($600.00) as a bond. He paid that, in cash, to the landlord within the first month of the tenancy. He had to borrow the money from a friend to afford this. The tenant says he asked for a tenancy agreement at this point, to formalise the arrangement as he wanted his bond money protected. The landlord did not provide a tenancy agreement.
The landlord stated that the tenant paid one week’s rent in advance. When challenged on this by the tenant, he reluctantly accepted it was probably two weeks’ rent in advance. The landlord did not produce rent records or any material to support his claim. This was despite claims that one of the reasons he was paid rent directly was because the tenant was bad at paying rent and he “wanted to keep tabs on it”.
I find that the tenant did pay a bond of $600.00 to the tenant.
It is agreed that the bond was not paid to the Bond Centre as required.
Accordingly, given my finding that this is residential tenancy, and the tenant that the tenant did pay a bond, I find that the landlord has committed an unlawful act.
That said, given the landlord’s position that this was a flatmate situation and not a tenancy, I accept that the failure to lodge the bond was not an intentional breach of the RTA.
Accordingly, I order that the bond be refunded to the tenant, by the landlord. However, I decline to make an award of exemplary damages. Unlawful termination
The tenant claims that the landlord has breached their obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord has given a variety of reasons for the termination of the tenancy. The notice given to the tenant provides 4 weeks’ notice on the basis that the landlord’s son was to move into the premises. At the first hearing, the landlord told me that the real reason for the termination was that the tenant threatened him with a knife. At the hearing today, the landlord told me that he terminated the tenancy because the other occupants were sick of the tenant and didn’t like him. He said that when he tried to tell the tenant he was to move out the tenant threatened him with a knife and Police were called. He later told me that the tenant punched him several times. The landlord said that after that, he wrote the termination notice giving 4 weeks’ notice so that his son could move in and asked the Police to serve it on the tenant.
Of note, that notice included the following:
The landlord’s explanation is that he gave the tenant 4 weeks’ notice to “be kind” and because he respected the tenant. He gave evidence at the initial hearing, and confirmed today that he told the tenant his son was moving in to keep the tenant calm and co-operative.
The tenant’s position is that the tenancy was terminated for no good reason. He accepted that if the landlord’s son was to move it, that might be a good reason, but noted that the landlord’s son previously resided in another building on the property, and the son moved in in December for just over a month before relocating to Perth.
The tenant accepts, as he did to Police, that he threatened the landlord and that he pushed him because the landlord was approaching him aggressively. He flatly denies punching the landlord. He was warned by Police for his conduct.
I accept the evidence of the tenant. His admission to the Tribunal and to the Police are consistent with this, and while his behaviour on the night does him no favours, his full and frank acceptance of responsibility for his behaviour are to his credit.
Further, having observed the landlord within the hearing, it is not difficult to see how the tenant may have perceived him as being aggressive. This does not, of course, excuse the tenant’s response, but does place it in context.
The landlord’s position in relation to the termination of the tenancy is made more untenable by the following: a. The initial reason for the termination of the tenancy, according to the landlord, was that the other occupants were sick of his behaviour and did not like him. b. He then extended that to say that it was because of the threats. However, the threat was made after the decision to terminate the tenancy and could not have been the main reason for it. c. The reason given, in writing, was that the landlord’s son was moving in. Specific mention was given to the tenant being “a good tenant”. This is a direct contradiction to the initial reason that the other tenants did not like his behaviour, to the landlord’s own evidence that the tenant was bad at paying rent, and in stark contrast to the assault the landlord alleged had just taken place, including punches. d. The explanation for the reason being untrue in the notice was to keep the tenant “calm and cooperative”. However, I note that the landlord elected not to proceed with criminal charges, which would have resulted in the tenant’s removal from the property by Police.
An assault or threat of assault on a landlord is grounds for an application to terminate the tenancy. However, the tenancy will only terminate on order of the Tribunal. A landlord cannot terminate a tenancy on notice for an assault or threat.
Further, while having a family member move in is grounds to terminate the tenancy under the RTA, a landlord is required to give 63 days’ notice, and the notice is required to meet the criteria set out in section 51(c) of the RTA. This notice doesn’t as it does not specifically set out the premises to which is relates, and it does not provide the date by which the tenant must vacate the premises.
Finally, a landlord cannot terminate a tenancy simply because the other occupants do not like the tenant. While anti-social behaviour can provide the basis for an application to the Tribunal, a strict process of issues anti-social behaviour notices is required to justify the termination of the tenancy.
Accordingly, none of the possible reasons for the termination of the tenancy are valid in the circumstances.
The assault on the landlord does give me cause for concern. However, I am satisfied that it occurred after the landlord had made and delivered the decision to terminate the tenancy. It was not the sole, or even the primary reason for it.
Accordingly, I consider that the landlord has unlawfully terminated the tenancy. I find he has committed an unlawful act.
Taking the section 109 considerations into account, I conclude again that the landlord’s actions were not an intentional breach of the RTA such that the stigma of an aware of exemplary damages is warranted.
That said, the landlord’s actions are a breach of the RTA and I consider that some compensation for that breach is appropriate. But for the tenant’s reaction, I would have awarded compensation of just over a third of the maximum exemplary damages for unlawful termination, in the vicinity of $2,500.00 as terminating a tenancy on the basis, essentially, of a personality conflict is an egregious breach. However, I consider that s85 and the resolution of this issue in a fair manner requires a reduction in the amount award to reflect the tenant’s conduct. Accordingly, I award $1,500 pursuant to section 77(2)(n) of the RTA. Landlord claims

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The landlord alleges the tenant did not remove all rubbish and he was required to remove significant amounts to the tip. The tenant dispute that and states that a lot of the material alleges was rubbish belonging to other tenants.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord alleges following damage was caused during the tenancy: a. Damage to the walls. b. Holes in doors. c. Staining on the carpet. d. A lost security key.
Before considering whether it would be unjust not making an order compensation against the tenant, unless, having regard to the special circumstances of the case, I will consider whether there is sufficient evidence to prove the landlord’s claims.
In relation to the key, the tenant accepts that the lock box was broken by his daughter, but states that he replaced it. The landlord accepts that he replaced the box, but argues that the key was missing. A further fee is payable to get a new key. The tenant denies losing the key, and states that it was returned to the lock box. Other occupants had access to the lock box, and there is simply insufficient evidence to conclude that the tenant is responsible for the loss of the key.
The landlord claims he emailed photographs of the damage and the receipts for the rubbish dumping to the Tribunal prior to the hearing. The email system was checked and one email from the landlord was located, which did not include the material referred to. The landlord could not tell me when he sent the email or provide evidence of sending it.
There were also no pre-tenancy photographs available.
The tenant accepted that the staining on the carpet was caused during the tenancy, and was spilt hair dye. However, his position was that he replaced the carpets, and that the carpet at the start of the tenancy was threadbare. Again, the tenant’s admissions against interest indicate he was credible in his evidence.
Despite that, the landlord has no evidence of quantum of loss, having not had repair work done, or even obtained quotes. The compensation amounts given are nothing more than a rough estimate.
Accordingly, I consider that the landlord has not discharged the onus of proving his claims or the quantum of loss caused and both claims are dismissed. Filing fee
Because Warwick Rolf Beauchamp has substantially succeeded with the claim I have reimbursed the filing fee.

Claims & awards

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

Claims and awards in Tenancy Tribunal application 4782614 — net $4,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: bond	$600.00	bond
Compensation: unlawful termination	$1,500.00	unlawful termination
Compensation: unlawful residential premises	$2,000.00	unlawful residential premises
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,120.44
Total payable by Landlord to Tenant	$4,120.44

Claims and awards for application 4782614 — net $4,120.44 NZD. Verify on MoJ.

Compensation: bond

Amount: $600.00
Awarded to: Tenant
Reason: bond

Compensation: unlawful termination

Amount: $1,500.00
Awarded to: Tenant
Reason: unlawful termination

Compensation: unlawful residential premises

Amount: $2,000.00
Awarded to: Tenant
Reason: unlawful residential premises

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $4,120.44

Total payable by Landlord to Tenant

Tenant $4,120.44

Claim types — money lines allowed on this order

Compensation Filing Fee

Order

The tenancy is a residential tenancy. The tenancy is subject to the Residential Tenancies Act 1986 and the jurisdiction of the Tribunal.
The premises is an unlawful residential premises.
Mike Poole As the Trustee for The Poole Family Trust must pay Warwick Rolf Beauchamp $4,120.44 immediately, calculated as shown in table below. DescriptionTenant Compensation: bond$600.00 Compensation: unlawful termination$1,500.00 Compensation: unlawful residential premises$2,000.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$4,120.44
The landlord’s cross applications are dismissed.

Reasons

Both parties attended the hearings.
The tenant seeks refund of his bond, compensation/exemplary damages for the failure to lodge the bond, unlawful termination of the tenancy, and the premises being an unlawful residential premises.
The landlord challenged the jurisdiction of the Tribunal, arguing that this is not a residential tenancy, rather it is a flatmate situation to which section 5(1)(n) applies. Without prejudice to that challenge, he also applied for compensation and reimbursement of the filing fee following the end of the tenancy. Procedural background
The hearing was held in two parts. The initial hearing was via teleconference and related to jurisdiction alone.
When it was clear that further evidence was required for the jurisdiction question, and that there was a cross-over of witnesses with the substantive matters, I convened a face-to-face hearing to complete all matters.
The landlord indicated that if I concluded the Tribunal had jurisdiction, he would file a cross-claim. In order to resolve all matters expediently, I invited the landlord to file his cross application, without prejudice to his jurisdiction challenge. He did so.
As both parties made reference to Police attendance at the address, and various allegations of criminal conduct, a summons was served in Inspector Jim Wilson, Auckland Central Area Commander, directing production of various documents.
These were received and seen by me. The contents of the relevant documents was disclosed to the parties orally. That evidence is subject to a non-publication order pursuant to s95A(4).
The material not disclosed is not relevant and is not to be disclosed to anyone as it does not form part of the evidence in this case.
I am grateful to the New Zealand Police for their co-operation in this matter, particularly given the short timeframes in which the material was provided. Background
The background to the arrangement is largely agreed.
The premises is a large dwelling, surrounded by a number of smaller buildings, some of which are used for residential purposes.
The main dwelling is in two parts. Plans of that dwelling were provided to me by the tenant. One larger part is described on the plans as the “existing house” (“the house”) and the smaller part as the “conservatory”. The tenant lived in the conservatory, which had a bedroom, study, living area, kitchenette and wash house. The conservatory has a separate entrance. Paul Nelson and his son lived in the house, which contained bedrooms, a living area, bathroom and kitchen.
There is a door between the conservatory and the house, but it was blocked during the tenancy.
The landlord owns the premises, but does not reside there full time. He is at the premises for work, and often stays over on Thursdays when he is working in the central city.
The parties agree the following: a. There was shared power and water, which was included in their rent. b. The tenant had a separate internet connection to Mr Nelson and his son. c. The tenant has a separate set of gas bottles for the conservatory that he was responsible for filling. The house had a its own gas supply. d. The were no shared living spaces, no share meals or social interactions. e. The tenant did not have a key to the house, and the occupants of the house do not have keys to the conservatory. f. Both parties agreed that if they were to go to the others portion of the dwelling, they would knock on the door and wait to be invited in. g. There was one total rent for the premises, which was split depending on occupancy. h. The tenant paid rent directly to the landlord.
Mr Nelson had been living in the premises for about 18 years. Initially he lived in the conservatory and there was a family living in the house. When that family moved out, he moved into the house with his son.
The landlord agreed that when the family lived in the house, they had a separate tenancy. However, the Council inspected the property and issued a “notice to fix” noting that the conservatory could not be tenanted as a separate unit due, amongst other things, to the lack of firewall between the two parts of the house. The landlord was told that the door between the parts of the house needed to remain unlocked and usable. The landlord was also required to seek consent for the kitchenette in the conservatory and a drain.
The Council confirmed by email date 11 April 2022 that those conditions had been complied with.
The landlord says this is why the conservatory was occupied by the tenant as a flatmate of Mr Nelson, and less often, himself.
The tenant says that he was told he could shut the door between the parts and put his fridge against it after the Council had inspected for compliance with the notice to fix. That is why he blocked the door between the parts of the house during the tenancy.
There is no written agreement.
The tenant is a friend of Mr Nelson’s brother. When Mr Nelson was looking for flatmates, he asked his brother to move in. His brother declined, but suggested the tenant move in instead. The tenant made the arrangements directly with the landlord. The tenant says this was because the landlord was who he was contracting with. The landlord says that Mr Nelson was responsible for choosing the occupants of the premises, and the arrangements were only with him on this occasion because Mr Nelson was overseas.
The tenant is adamant that he did not intend to be a flatmate. He wanted to live alone, and the conservatory suited him for that.
The landlord is adamant that this was to be a flatmate situation given the Council’s warnings about not tenanting the conservatory as a separate unit.
The tenant moved into the premises on 2 February 2022. The tenancy ended on 16 November 2023. The applications to the Tribunal followed.
There is not a significant volume of contemporaneous material to assist me in determining the various claims, and on important points the parties’ evidence was entirely at odds. On those occasions I have had to determine the dispute based on my assessment of each party/witness’s credibility, and whether I accept their evidence on each point either in whole or in part.
The onus remains on the applicants for each portion of the claim and cross claim. The standard is the balance of probabilities, in other words, is it more likely than not that something happened or did not happen.
On the whole, I found the tenant to be a credible and forthright witness. He was upfront about matters, including matters which did not support his position. His evidence was consistent with the contemporaneous material that was available to me. The tenant generally remained easily calmed, even in the face of provocative comments from the landlord and Mr Nelson.
By contrast, I found the landlord to be a less than compelling witness. His evidence varied on certain points between the hearing today and the previous telephone hearing, and also within the hearing today. The landlord had a tendency to speak over me when he disagreed and used tone, volume and body language aggressively to do so. The landlord displayed an attitude of scant regard for the Tribunal process and the tenant which was reflected in the level of detail he provided in evidence and his manner of responding to the tenant’s claims and in advancing his own.
Overall, I found Mr Nelson to be a credible witness, albeit one who was taking his lead from the landlord.

Is this a residential tenancy?

The parties seek a determination from the Tribunal as to whether this tenancy is a residential tenancy (the tenant’s position) or a flatmate arrangement, excluded from the Act by section 5(1)(n) (the landlord’s position).
For the reasons outlined below, I am not satisfied that s5(1)(n) applies. Accordingly, this is a residential tenancy to which the Act applies. The Law
Section 4 provides that This Act applies to every tenancy for residential purposes except as specifically provided.
The exceptions to the Act are contained in Section 5. Relevantly, section 5(1)(n) of the Act provides that 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.
“Residential premises” is defined in section 2(1) of the Act as any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.
“Premises” is defined in section 2 of that Act as including: (a) Any part of any premises; and (b) Any land and appurtenances, other than facilities; and (c) Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land.
Section 10 of the Act provides that Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
So, in the present case, the landlord must prove, on the balance of probabilities, that section 5(1)(n) applies. Caselaw
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.

Were the premises occupied as a separate household unit?

The tenant had very little interaction with the landlord. As stated, there were shared utilities, but other than that the tenant and landlord lived independently.
As the dwelling is a building, the requirements of the Building Act 2004 (“the Building Act”) apply to it.
One of the types of buildings categorised in the Building Act is called a “household unit”.
A household unit is defined in section of 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”
The Tenancy Tribunal deals predominantly with household units (with the exception of boarding houses).
The question of whether a premises is a separate household unit arose in the recent High Court decision Harding v Schellevis & Ors [2021] NZHC 1265.
In that case, the landlord entered into a “flatmate/house-sharing agreement” with the tenants, which expressly recorded an acknowledgement that the premises were the primary residence of the landlord’s family and that therefore the Act did not apply (see section 5(n) exclusion).
However, the Auckland Council previously confirmed to the landlord that the premises could not be tenanted as a separate household unit (e.g., no fire rated walls etc).
Analysing the factual situation, the Tribunal determined that the Act did apply and that the building consisted of two separate and distinct household units.
The landlord appealed that finding to the District Court, which confirmed the Tribunal’s finding, and dismissed the landlord’s appeal.
The landlord then appealed to the High Court and the High Court confirmed both the District Court and Tribunal’s decision.
Justice Walker in the High Court determined that: a.the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b.residential premises can include part of any premises used or intended for occupation as a place of residence; c.the Act supports a generous approach to jurisdiction for the tribunal and conversely a strict approach to exceptions; d.the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.” Analysis
Determination of whether the exceptions in section 5 of the Act apply are fact specific.
I consider that I am bound by the findings as to the law of the High Court in Harding v Schellevis & Ors and the District Court in Adams v Massey University.
I also consider the definition of “flatmates” set out by the District Court in Musson v Dobrisek CIV-2006-032-36, 5 May 2006, is useful. The Court noted, at paragraph [22]: By 'flatmates' I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.
Section 11 of the Act prohibits the parties from contracting out of the Act. The Act applies, and the Tribunal has jurisdiction, unless one of the exceptions in section 5 applies. Accordingly, I must determine the nature of the relationship as a matter of fact.
Complicating matters slightly in this case, is the fact that the landlord does not live at the premises full time. So, there are three possible outcomes for this matter – a. There is one tenancy. Mr Nelson is the “head tenant” and the tenant is his flatmate (which is the landlord’s position). b. There is a residential tenancy, Mr Nelson is the sublandlord of the tenant. c. There is a residential tenancy, with the landlord directly (this is the tenant’s position).
If the house as a whole was the relevant “premises” then I would easily conclude that the tenant was a flatmate of Mr Nelson. This would be on the basis that the Mr Nelson, as head tenant is the “landlord” for the purposes of section 5(1)(n), which I accept would apply in that case.
However, I find that is not the case, rather I consider that the conservatory is a separate premise to the rest of the house. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”
The factors in favour of this are the separate entrance, facilities and living areas. There was no communal living, or shared space. I accept the evidence that the tenant was not entitled to access the house and the occupants of the house had no access to the conservatory.
While this was physically one building, there were two separate and distinct household units within that building.
Accordingly, the relevant “premises” for the purposes of section 5(1)(n) is the conservatory only.
The question, then, is whether the conservatory “continue[d] 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.”
It is clear that conservatory was not used principally as a place of residence for the landlord or a member of his family.
Bearing in mind the above, my finding in this proceeding is that the tenant occupied the conservatory as “a self-contained separate household unit”.
Accordingly, section 5(1)(n) does not apply. The tenancy is a residential tenancy, subject to the provisions of the Act and the Jurisdiction of the Tribunal.
The question then, is who is the landlord – is it Mr Poole or Mr Nelson?
The landlord’s position is that Mr Nelson was responsible for choosing the occupants for the premises.
However, on this occasion, beyond the introduction to the tenant, which came via Mr Nelson, all arrangements were made between the landlord and tenant directly. The tenant paid rent directly to the landlord, and the landlord communicated directly with the tenant about all matters, including the termination of the tenancy.
The tenant believed he was contracting with Mr Poole directly.
Further, Mr Poole maintained a clear level of authority within the relationships. While Mr Nelson was given considerable input, I consider it more likely than not that Mr Poole had the ultimate authority over decisions around the letting of the premises.
Accordingly, I find that Mr Poole is that landlord and Mr Beauchamp in the tenant.

Is the premises an unlawful residential premises?

Section 78A(2) of the Act states: For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), ..., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 36 of the Act 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.
Section 45(1)(c) states that: (1)The landlord shall – ..... (c) Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;
The conservatory occupied by the tenant is clearly a residential premises, in that it is a part of the premises, used for occupation as a place of residence. Put simply, it was intended that the tenant live in the premises, and the tenant did, in fact, live there.
The question is whether the premises can be lawfully occupied as residential premises, either generally or for the particular residential purposes for which the tenant occupied it, and whether the landlord’s failure to comply with either section 35 or section 45(1)(c) caused or contributed to the unlawfulness of the occupation.
In the present case, the particular residential purposes concerned is the occupation of the premises as a second household unit, separate to the top part of the building.
While the premises can be occupied, generally, for residential purposes, as the building as a whole has Council consent for residential use, an issue arises when looking at the division of the premises into two separate household units.
Given both limbs of section 78A(2) must be satisfied before a premises is deemed an unlawful residential premises, it is useful to consider section 36 and 45(1)(c) when considering whether the use of the premises in this particular manner is unlawful, as if the occupation of the premises is unlawful as a result of either section, it will be likely that the landlord’s failure to comply with those sections contributed to the unlawfulness of the occupation.
Section 45(1)(c), in this case, requires consideration of whether then landlord has complied with the provisions of the Building Act 2004, in particular, sections 40, 114 and 115 of that Act.
Section 40 of the Building Act states that a household unit, being a building intended for residential occupation, must have a building consent and be certified as being compliant by having a code compliance certificate.
If it has neither, or a building consent only, then pursuant to the Act, it is an unlawful residential premises.
Sections 114 and 15 deal with the change of use of consented buildings.
Section 114 of the Building Act requires the owner to give notice of a change of use of the building, and makes failure to do so an offence.
Section 115 of the Building Act provides that an owner of a building must not change the use of the building – (a) in a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use, will comply, as nearly as is reasonably practicable, with the building code in all respects; and (b) in any other case, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use,— (i) will comply, as nearly as is reasonably practicable, with every provision of the building code that relates to the following: (A) means of escape from fire, protection of other property, sanitary facilities, structural performance, and fire-rating performance: (B) access and facilities for persons with disabilities (if this is a requirement under section 118); and (ii) will,— (A) if it complied with the other provisions of the building code immediately before the change of use, continue to comply with those provisions; or (B) if it did not comply with the other provisions of the building code immediately before the change of use, continue to comply at least to the same extent as it did then comply.
To determine whether there has been a change in the use of a building, consideration must be given to the Buildings (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 (“the regulations”).
Change the use is defined in the regulations as: ...to change the use (determined in accordance with regulation 6) of all or a part of the building from one use (the old use) to another (the new use) and with the result that the requirements for compliance with the building code in relation to the new use are additional to, or more onerous than, the requirements for compliance with the building code in relation to the old use.
Regulation 6 states that every building or part of a building has a use as specified in the table in schedule 2 of the regulations.
The following uses in schedule 2 of the regulations are relevant for residential purposes: SA (Sleeping Accommodation)spaces providing transient accommodation, or where limited assistance or care is provided for people motels, hotels, hostels, boarding houses, clubs (residential), boarding schools, dormitories, halls, wharenui SR (sleeping Residential)attached and multi-unit residential dwellings, including household units attached to spaces or dwellings with the same or other uses, such as caretakers' flats, and residential accommodation above a shop multi-unit dwellings, flats, or apartments SH (Sleeping Single Home)detached dwellings where people live as a single household or family, including attached self- contained spaces such as granny flats when occupied by a member of the same family, and garages (whether detached or part of the same building) if primarily for storage of the occupants' vehicles, tools, and garden implements dwellings or houses separated from each other by distance
The premises, in the present case, is consented as an “SH – sleeping single home” use containing a single household unit.
The division of the building into two household units would make it an “SR – sleeping residential” use, namely 2 attached separate household units being occupied by two separate households.
Accordingly, I consider this to be a change to the use of the building to which section 115 of the Building Act applies and the owner was required to obtain written notice from the Counsel that the building, in its new use, will comply with the Building Code.
There is no evidence of such written notice, nor is there evidence that the conversion of the premises into two flats was consented by the Council or compliant with the Building Code. In fact, the Council served a notice on the landlord in 2021 prohibiting the use of the conservatory a separate household unit as there was no firewall between two premises.
Accordingly, I consider that the landlord has not complied with the Building Act, and consequently has failed to comply with section 45(1)(c) of the Act.
The failure to obtain consent to divide the premises into two household units, in my view, makes occupation of it in that particular manner, unlawful.
Accordingly, the premises is an unlawful residential premises.
Returning then, to section 78A of the Act. Section 78A provides that where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order.
The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so.
The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements.

Are there special circumstances warrant a reduction in the amount awarded?

Section 78A of the Act was introduced in 2017 in response to two High Court decisions relating to the jurisdiction of the Tribunal to determine applications relating to unlawful residential premises. At the time of introduction of the Bill, the then-Minister for Building and Constructions, the Hon Nick Smith made reference to what he described as the “abhorrent” practice of renting out unconsented, non- compliant and unsafe properties to tenants. He noted: So the purpose of this part of the bill is to ensure that where landlords do rent out inappropriate properties, there is the capacity to hold those landlords to account. ... My view is that the amendments in this bill that make it plain that the tribunal has full jurisdiction over unlawful residential premises will strengthen the regulatory environment and ensure that those people who attempt to rent out such properties are held accountable.”
I consider that the public policy behind the introduction of section 78A is: a.To hold landlords to account for choosing to expose tenants to the health and safety risks of renting out unconsented or non-compliant properties; b.To disincentivise the practice; and c.To ensure landlords don’t profit from the practice.
That said, by allowing the Tribunal to the discretion to reduce the amount awarded to tenants under s78A, I consider that Parliament intended there to be a distinction be drawn between premises that were unlawful on the basis of some type of regulatory technicality, but which were otherwise safe, healthy homes, and those property which created risks to health and safety.
In the present case, I consider that the amount order should be reduced to take into account the fact that the premises is consented for residential purposes, and the tenant has had the benefit of some utility from the occupation of the premises almost two years. He liked living there and had he not been evicted, would have continued to live there.
I note that none of the tenant’s other claims relate to the condition of the premises. Accordingly, there is no evidence to suggest that the conservatory was anything other than a comfortable home for the tenant for the duration of his tenancy.
I consider that a reduction in the amount awarded is appropriate to reflect the utility to the tenant, and the fact that none of the tenant’s other claims related to the condition of the premises. Rather than calculate this as a portion, I consider a global award of compensation for the unlawful nature of the premises is the best approach. I award $2,000.00 compensation to the tenant. Exemplary damages generally
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a.The intent of the person committing the unlawful act. b.The effect of the unlawful act. c.The interests of the landlord or tenant against whom the unlawful act was committed. d.The public interest; and e.Whether it is just to make the award. Bond
The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord dispute that a bond was paid by the tenant.
The tenant says that he paid $600 to the landlord for the first two weeks rent. He was then told he had to pay a further two weeks rent ($600.00) as a bond. He paid that, in cash, to the landlord within the first month of the tenancy. He had to borrow the money from a friend to afford this. The tenant says he asked for a tenancy agreement at this point, to formalise the arrangement as he wanted his bond money protected. The landlord did not provide a tenancy agreement.
The landlord stated that the tenant paid one week’s rent in advance. When challenged on this by the tenant, he reluctantly accepted it was probably two weeks’ rent in advance. The landlord did not produce rent records or any material to support his claim. This was despite claims that one of the reasons he was paid rent directly was because the tenant was bad at paying rent and he “wanted to keep tabs on it”.
I find that the tenant did pay a bond of $600.00 to the tenant.
It is agreed that the bond was not paid to the Bond Centre as required.
Accordingly, given my finding that this is residential tenancy, and the tenant that the tenant did pay a bond, I find that the landlord has committed an unlawful act.
That said, given the landlord’s position that this was a flatmate situation and not a tenancy, I accept that the failure to lodge the bond was not an intentional breach of the RTA.
Accordingly, I order that the bond be refunded to the tenant, by the landlord. However, I decline to make an award of exemplary damages. Unlawful termination
The tenant claims that the landlord has breached their obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord has given a variety of reasons for the termination of the tenancy. The notice given to the tenant provides 4 weeks’ notice on the basis that the landlord’s son was to move into the premises. At the first hearing, the landlord told me that the real reason for the termination was that the tenant threatened him with a knife. At the hearing today, the landlord told me that he terminated the tenancy because the other occupants were sick of the tenant and didn’t like him. He said that when he tried to tell the tenant he was to move out the tenant threatened him with a knife and Police were called. He later told me that the tenant punched him several times. The landlord said that after that, he wrote the termination notice giving 4 weeks’ notice so that his son could move in and asked the Police to serve it on the tenant.
Of note, that notice included the following:
The landlord’s explanation is that he gave the tenant 4 weeks’ notice to “be kind” and because he respected the tenant. He gave evidence at the initial hearing, and confirmed today that he told the tenant his son was moving in to keep the tenant calm and co-operative.
The tenant’s position is that the tenancy was terminated for no good reason. He accepted that if the landlord’s son was to move it, that might be a good reason, but noted that the landlord’s son previously resided in another building on the property, and the son moved in in December for just over a month before relocating to Perth.
The tenant accepts, as he did to Police, that he threatened the landlord and that he pushed him because the landlord was approaching him aggressively. He flatly denies punching the landlord. He was warned by Police for his conduct.
I accept the evidence of the tenant. His admission to the Tribunal and to the Police are consistent with this, and while his behaviour on the night does him no favours, his full and frank acceptance of responsibility for his behaviour are to his credit.
Further, having observed the landlord within the hearing, it is not difficult to see how the tenant may have perceived him as being aggressive. This does not, of course, excuse the tenant’s response, but does place it in context.
The landlord’s position in relation to the termination of the tenancy is made more untenable by the following: a. The initial reason for the termination of the tenancy, according to the landlord, was that the other occupants were sick of his behaviour and did not like him. b. He then extended that to say that it was because of the threats. However, the threat was made after the decision to terminate the tenancy and could not have been the main reason for it. c. The reason given, in writing, was that the landlord’s son was moving in. Specific mention was given to the tenant being “a good tenant”. This is a direct contradiction to the initial reason that the other tenants did not like his behaviour, to the landlord’s own evidence that the tenant was bad at paying rent, and in stark contrast to the assault the landlord alleged had just taken place, including punches. d. The explanation for the reason being untrue in the notice was to keep the tenant “calm and cooperative”. However, I note that the landlord elected not to proceed with criminal charges, which would have resulted in the tenant’s removal from the property by Police.
An assault or threat of assault on a landlord is grounds for an application to terminate the tenancy. However, the tenancy will only terminate on order of the Tribunal. A landlord cannot terminate a tenancy on notice for an assault or threat.
Further, while having a family member move in is grounds to terminate the tenancy under the RTA, a landlord is required to give 63 days’ notice, and the notice is required to meet the criteria set out in section 51(c) of the RTA. This notice doesn’t as it does not specifically set out the premises to which is relates, and it does not provide the date by which the tenant must vacate the premises.
Finally, a landlord cannot terminate a tenancy simply because the other occupants do not like the tenant. While anti-social behaviour can provide the basis for an application to the Tribunal, a strict process of issues anti-social behaviour notices is required to justify the termination of the tenancy.
Accordingly, none of the possible reasons for the termination of the tenancy are valid in the circumstances.
The assault on the landlord does give me cause for concern. However, I am satisfied that it occurred after the landlord had made and delivered the decision to terminate the tenancy. It was not the sole, or even the primary reason for it.
Accordingly, I consider that the landlord has unlawfully terminated the tenancy. I find he has committed an unlawful act.
Taking the section 109 considerations into account, I conclude again that the landlord’s actions were not an intentional breach of the RTA such that the stigma of an aware of exemplary damages is warranted.
That said, the landlord’s actions are a breach of the RTA and I consider that some compensation for that breach is appropriate. But for the tenant’s reaction, I would have awarded compensation of just over a third of the maximum exemplary damages for unlawful termination, in the vicinity of $2,500.00 as terminating a tenancy on the basis, essentially, of a personality conflict is an egregious breach. However, I consider that s85 and the resolution of this issue in a fair manner requires a reduction in the amount award to reflect the tenant’s conduct. Accordingly, I award $1,500 pursuant to section 77(2)(n) of the RTA. Landlord claims

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The landlord alleges the tenant did not remove all rubbish and he was required to remove significant amounts to the tip. The tenant dispute that and states that a lot of the material alleges was rubbish belonging to other tenants.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord alleges following damage was caused during the tenancy: a. Damage to the walls. b. Holes in doors. c. Staining on the carpet. d. A lost security key.
Before considering whether it would be unjust not making an order compensation against the tenant, unless, having regard to the special circumstances of the case, I will consider whether there is sufficient evidence to prove the landlord’s claims.
In relation to the key, the tenant accepts that the lock box was broken by his daughter, but states that he replaced it. The landlord accepts that he replaced the box, but argues that the key was missing. A further fee is payable to get a new key. The tenant denies losing the key, and states that it was returned to the lock box. Other occupants had access to the lock box, and there is simply insufficient evidence to conclude that the tenant is responsible for the loss of the key.
The landlord claims he emailed photographs of the damage and the receipts for the rubbish dumping to the Tribunal prior to the hearing. The email system was checked and one email from the landlord was located, which did not include the material referred to. The landlord could not tell me when he sent the email or provide evidence of sending it.
There were also no pre-tenancy photographs available.
The tenant accepted that the staining on the carpet was caused during the tenancy, and was spilt hair dye. However, his position was that he replaced the carpets, and that the carpet at the start of the tenancy was threadbare. Again, the tenant’s admissions against interest indicate he was credible in his evidence.
Despite that, the landlord has no evidence of quantum of loss, having not had repair work done, or even obtained quotes. The compensation amounts given are nothing more than a rough estimate.
Accordingly, I consider that the landlord has not discharged the onus of proving his claims or the quantum of loss caused and both claims are dismissed. Filing fee
Because Warwick Rolf Beauchamp has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4782614 — Tenancy dispute at 141 Waipuna Road East, Mount Wellington, Auckland 1060

At a glance

Tenancy Tribunal case 4782614 — Tenancy dispute at 141 Waipuna Road East, Mount Wellington, Auckland 1060

At a glance

Award balance

Claims & awards

Order

Reasons

Is this a residential tenancy?

Were the premises occupied as a separate household unit?

Is the premises an unlawful residential premises?

Are there special circumstances warrant a reduction in the amount awarded?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is this a residential tenancy?

Were the premises occupied as a separate household unit?

Is the premises an unlawful residential premises?

Are there special circumstances warrant a reduction in the amount awarded?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions