What was the outcome of Tenancy Tribunal case 4821502?

The tribunal order states: The landlord’s notification to the tenant dated 7 May 2024 that the tenancy was

How much money was awarded in case 4821502?

Compensation: invalid notice of term…: $500.00 awarded to tenant; Compensation: unlawful premises, mai…: $3,810.00 awarded to tenant; Compensation: Ventilation Standard: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $1,800.00 awarded to tenant; Property Damage: $150.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4821502?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4821502?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11407584-Tribunal_Order_Redacted.pdf.

What was the outcome of Tenancy Tribunal case 4821502?

The tribunal order states: The landlord’s notification to the tenant dated 7 May 2024 that the tenancy was

How much money was awarded in case 4821502?

Compensation: invalid notice of term…: $500.00 awarded to tenant; Compensation: unlawful premises, mai…: $3,810.00 awarded to tenant; Compensation: Ventilation Standard: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $1,800.00 awarded to tenant; Property Damage: $150.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4821502?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4821502?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11407584-Tribunal_Order_Redacted.pdf.

Unit/Flat 7, 34 Beatty Street, Melville, Hamilton 3206 Tenancy Tribunal Case 4821502 — Exemplary damages

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Unit/Flat 7, 34 Beatty Street, Melville, Hamilton 3206 Tenancy Tribunal Case 4821502 — Exemplary damages | 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 4821502 — net $6,780.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: unlawful premises, maintenance, quiet enjoyment	$3,810.00	unlawful premises, maintenance, quiet enjoyment
Compensation: invalid notice of termination	$500.00	invalid notice of termination
Exemplary damages: breach of resource consent	$1,800.00	breach of resource consent
Compensation: ventilation standard	$250.00	ventilation standard
Exemplary damages: breach of HHS information	$250.00	breach of HHS information
Exemplary damages: not providing copies of all tenancy agreements	$150.00	not providing copies of all tenancy agreements
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,780.44
Total payable by Landlord to Tenant	$6,780.44

Claims and awards for application 4821502 — net $6,780.44 NZD. Verify on MoJ.

Compensation: unlawful premises, maintenance, quiet enjoyment

Amount: $3,810.00
Awarded to: Tenant
Reason: unlawful premises, maintenance, quiet enjoyment

Compensation: invalid notice of termination

Amount: $500.00
Awarded to: Tenant
Reason: invalid notice of termination

Exemplary damages: breach of resource consent

Amount: $1,800.00
Awarded to: Tenant
Reason: breach of resource consent

Compensation: ventilation standard

Amount: $250.00
Awarded to: Tenant
Reason: ventilation standard

Exemplary damages: breach of HHS information

Amount: $250.00
Awarded to: Tenant
Reason

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee

Order

The landlord’s notification to the tenant dated 7 May 2024 that the tenancy was ending is invalid and of no effect.
The tenancy of [The tenant/s] at Unit 7, 34 Beatty Street, Melville, Hamilton is a periodic tenancy and became so on 31 May 2024.
The tenancy premises are unlawful residential premises because they may only be occupied by a single occupant who is a visitor being provided temporary accommodation of up to three months’ continuous occupation during any 12- month period.
The landlord may, at any time, terminate the tenancy by giving not less than 90 days’ written notice to the tenant.
The tenant may, at any time, terminate the tenancy by giving not less than 2 days’ written notice to the landlord.
Eves Realty Limited, Gil Roesler and Rebecca Roesler must pay [The tenant/s] $6,780.44 immediately, calculated as shown in the table below:

Reasons

[The tenant/s] and the landlords’ representatives attended all hearings.
The tenant has applied for compensation, exemplary damages and work orders relating to her tenancy of one unit in a complex of 12 studio units.
This complex of units is held in a form of property ownership called a “unit title”. A unit title development contains separate units and common property. The separate units can be bought and sold individually. The common property is owned and managed by a “body corporate” which is a separate legal entity. Usually, the owners of the units are the members of the body corporate. See section 4 of the Unit Titles Act 2010 (UTA).
The Tenancy Tribunal has jurisdiction over disputes between residential landlords and tenants under the Residential Tenancies Act 1986 (RTA).
The Tribunal also has jurisdiction over disputes between owners, occupiers, the body corporate, and service contractors under the Unit Titles Act 2010; s171 UTA.
The tenant has brought this application under the RTA so that is how I have addressed her claims. Where relevant, I may also refer to the sections of the UTA that may apply. However, I have not considered remedies under the UTA.
“The landlord” means both the owners of this unit and its agent. The owners live overseas so its agent has all the rights and responsibilities of the landlord; s16A(5) RTA.
The landlord has not made an application to the Tribunal. Summary
[The tenant/s] has lived in this unit since 28 August 2022.
She first lived in another unit in the complex for 90 days (managed by a different property management company) and then heard from a neighbouring tenant that she might be able to stay longer in some of the other units.
This landlord and [The tenant/s] initially signed a tenancy agreement for a fixed term from 28 August 2022 to 26 November 2022.
The tenancy agreement included the below clause: (“the 90-day clause”) 90 Day Tenancy - this Tenancy is set to a 90 day maximum and will not automatically convert to a periodic tenancy due to Council Consents. Tenancy terminates at the end of the fixed term.
The tenancy did not terminate at the end of the fixed term.
Instead, the parties agreed to another fixed term of about the same length and went on to do so a total of seven times on essentially the same conditions (including the 90-day clause).
The most recent tenancy agreement records a fixed term from 2 March 2024 to 30 May 2024.
In late February and March 2024, the tenant applied to the Tribunal 1 asking for orders to fix maintenance issues and disturbance from other unit occupiers.
On 7 May 2024, the landlord notified her the tenancy was ending, and she was required to vacate at the end of that term – on 30 May 2024.
The tenant says that this is retaliatory or without grounds.
At the first hearing, the landlord told the Tribunal that it could only offer the tenant 90-day tenancies because of the terms of council consents for this unit title complex.
The Tribunal chose to investigate this further and sought evidence from the council.
I made an interim order at the first hearing that the tenancy would not terminate pursuant to the landlords’ notice.
This decision finalises all issues. 1 Applications 4821502 on 28 February 2024 and 4842640 on 21 March 2024.

What are the issues?

The main issues to be decided are:- a. Was the landlord correct that it could choose to end the tenancy on 30 May 2024 and that the usual notice requirements did not apply? (s7, 51 and s60A RTA). i.Does s7 RTA apply? ii.What type of tenancy is this? b. Was the landlord’s notice that the tenancy was ending retaliatory or without grounds? (s54 and s60AA RTA) c. Can the unit be lawfully lived in by the tenant in the way that it has been? If not, has the landlord contributed to or caused this situation? (s78A RTA).
Other specific issues are:- a. Did the landlord breach its maintenance obligations? (s45(1)(b) RTA) b. Has the landlord caused or permitted interference with the reasonable peace, comfort, or privacy of the tenant in her use of the premises? (s38 RTA) c. Has the landlord breached the healthy homes ventilation standard because the rangehood is not externally ducted or does an exemption apply? (s45(1)(bb) RTA. d. Did the landlord provide the healthy homes information requested by the tenant? (s45(1AC) RTA). e. Did the landlord provide signed tenancy agreements before the tenancy commenced? (s13 RTA) f. Did the landlord give the tenant notice that the premises were on the market for sale? (s47 RTA)
Where a breach is proven, the Tribunal must also decide the extent of any remedies including declarations, orders requiring a party to remedy a breach, compensation (which may be a refund of rent), and exemplary damages.
Compensation is when the applying party says that they have suffered a loss or disadvantage because of a breach by the other party.
Exemplary damages are like a fine or a penalty and can only be awarded when a party has intentionally committed a breach specified as an “unlawful act” (these are listed in Schedule 1A Residential Tenancies Act 1986). The Tribunal must decide whether it is just to award these after considering the breaching party’s intent, the effect of the act, the interests of the innocent party, and the public interest; see s109(3) RTA.
[The tenant/s] has applied for work orders, compensation, and exemplary damages on all claims. Was the landlord correct that it could choose to end the tenancy on 30 May 2024 and that the usual notice requirements did not apply? (s7, 51, 54 and s60A RTA).
Seven fixed term tenancy agreements have been provided in evidence. It is not clear whether all the agreements were signed but it is not disputed that the terms of each were agreed to by both parties.
The documented fixed terms are 28/08/2022 to 26/11/2022; 28/11/2022 to 26/02/2023; 28/02/2023 to 29/05/2023; 31/05/2023 to 29/08/2023; 31/08/2023 to 29/11/2023; 01/12/2023 to 29/02/2024; 02/03/2024 to 30/05/2024.
Importantly, there is one day between the end date of one term and the start date of the next.
The parties discussed entering into a new fixed term as early as ten days after the tenancy first started when [The tenant/s] emailed the landlord and asked: if I’m able to renew my lease if I need to?”
The landlord replied (on 8 September 2022): In regards to renewing your lease, as they are 90 day tenancies we cannot renew as such however we can start a new 90 day tenancy with one day in between. This means you are required to vacate the property for 24 hours then you can move back in. Unfortunately the consents on the property don't allow us to keep you in the property for more than 90 consecutive days so this is the only way we can do it.
The parties agree 2 that the usual practice prior to each new tenancy agreement being entered into was that the landlord would email the tenant two to four weeks before each fixed term expired, ask if she wished to remain in the property for a further 90-day period, and advise that if she did she would need to sign a new agreement and vacate the property for 24 hours.
This happened prior to each of the new fixed terms. However, on 7 May 2024, the landlord emailed the tenant and said: this letter serves as a reminder that your 90 day tenancy is ending and that you will be vacating 7/34 Beatty Street, Melville on 30/05/2024.
This shocked the tenant. She had been expecting the tenancy to be renewed for another fixed term as it had been on the previous occasions. 2 In oral evidence in the hearings and reflected in emails between them.
The tenant says the landlord can’t just decide the tenancy is ending and only give her 23 days’ notice of this.
The landlord says it does not need to have a reason and it does not need to comply with the notice requirements because this is a short fixed-term tenancy of 90 days or less which the parties agreed would end on the last day of the term as is stated in the 90-day clause. 3

Does section 7 RTA apply to this tenancy?

The landlord is referring to section 7 RTA.
Section 7(1) says that the usual rules about market rent (sections 25 to 28 RTA) and giving notices to terminate a tenancy (s51 RTA) do not apply to: .... a tenancy for a fixed term of not more than 90 days (whether or not terminable by notice) if, before the commencement of the tenancy, the parties agree in writing that the tenancy will not be extended or renewed to give a total length of the term in excess of 90 days.
Section 7(2) RTA says that:- ... where such a tenancy is extended or renewed, whether once or more than once, with the result that the total length of the term exceeds 90 days, on the expiry of that period of 90 days the tenancy shall become subject to sections 25 to 28 and 51 (as well as all the other provisions).
The most recent fixed term of the tenancy started on 2 March 2024 and ended on 30 May 2024. This is a term of exactly 90 days.
The landlord’s view is that the tenancy was not “extended or renewed” (in the words of s7(2) RTA). It says that each of the seven fixed term of this tenancy are a new and distinct tenancy.
It says this is because there is a one-day gap between each documented term. For example, the first term ended on 26 November 2022 and the next term started on 28 November 2022. There is a one-day gap between all of the terms.
The landlord’s view is that s7(1) RTA applies to each one of the seven fixed terms and that the 90-day clause in the tenancy agreement means it had the right to choose to end the tenancy at the end of the last fixed term (on 30 May 2024).
The tenant says this cannot be right because there have been seven fixed terms, all with the 90-day clause in the tenancy agreement, and it wouldn’t be fair if the landlord could suddenly decide to enforce the clause this time. 3 The landlord’s evidence includes an extract from the Tenancy Services website which describes the rules for short fixed-term tenancies as including that “no further notice to end the tenancy needs to be given”; www.tenancy.govt.nz/starting-a-tenancy/types-of-tenancies/short-fixed-term-tenancy/
I agree with the tenant.
It is true that the parties documented terms of certain start and end dates, said in emails to each other that the tenant would vacate for 24 hours between each term, and included the “90 Day Tenancy” clause in each of the seven tenancy agreements. However, these written terms did not reflect what was happening in practice.
In practice, the tenancy did not end after the first term. The parties agreed before it ended that a new fixed term would begin. In fact, the parties were discussing this as early as ten days after the start of the tenancy.
Neither did the tenancy end for 24 hours between each term. I asked the parties in the hearing whether the tenant did move out for 24 hours between terms. They both agreed that she did not vacate or move any of her belongings out of the unit in between the dates of the fixed terms.
On paper, the tenancy ended for one day but, in reality, it continued between each of the documented fixed term dates.
Also, in legal wording, a “renewed” tenancy means a new tenancy. 4
So, when s7(2) RTA refers to a tenancy being extended or renewed so that the total length of the term is more than 90 days, the word renewed means entering into a “new” tenancy.
My decision is that this is not a tenancy to which s7(1) RTA applies because the total length of the term of the tenancy is more than 90 days long:- a. Firstly, the very first term of the tenancy was 91 days long (28 August to 26 November 2022). It was one day too long for s7 to apply. b. Secondly, even if the first term had been not more than 90 days long, the tenancy was renewed six times resulting in a total length of term of more than 90 days so s7(2) RTA would have applied.

What type of tenancy is this?

Section 7(2) RTA makes it clear that if the total term exceeds 90 days “all the other provisions” of the RTA apply.
One of the provisions, or sections, that applies to fixed term tenancies of more than 90 days is s60A RTA. 4 The “renewal” and “extension” of a tenancy mean different things. A renewal means a new tenancy starts and all previous agreements are no longer in force. An extension of a tenancy means the original contract stays in place but the end date of the term changes. See Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at [48.R.8.13.10].
At the time that the landlord sent its email (7 May 2024), s60A RTA provided that a fixed term tenancy of more than 90 days becomes a periodic tenancy unless:- a. Before the expiry, the parties have both agreed to renew, extend, or not continue it, or b. the tenant gives 28 days’ written notice to the landlord they do not wish to continue the tenancy, or c. before the expiry, one or other of them gives notice to terminate the tenancy in accordance with the usual rules for periodic tenancies.
Section 60A RTA has applied to this tenancy since the very first term (because the first term was 91 days long).
The parties both agreed to renew the fixed term tenancy several times; s60A(2)(a) RTA.
Then, the landlord decided not to renew it.
But the landlord could not terminate the tenancy unless it complied with the usual rules which include s60A and s51 RTA.
At the time that the landlord sent its email (7 May 2024), the rules in s60A and s51 RTA included that one of the reasons allowing a landlord to terminate a periodic tenancy needed to apply (for example, that the premises were to be put on the market for sale within 90 days) and that the correct minimum period of notice had to be given. This is either 63 or 90 days depending on the reason.
Section 51 RTA also requires that a notice be in writing, identify the premises, specifies the date by which the tenant must vacate and is signed; s51(3) RTA.
The landlord did not comply with s60A and s51 RTA. It did not give a reason and did not give the minimum period of notice.
I made an interim decision on 30 May 2024 that the tenancy would not terminate that day to preserve the tenant’s position until all evidence could be heard and considered.
I have now made a final declaration that the landlord’s email to the tenant on 7 May 2024 that the tenancy was ending was invalid and of no effect. It could not lawfully do this; s77(2)(f) RTA.
I have also made a declaration that the tenancy is now a periodic tenancy pursuant to s60A RTA and became so on 31 May 2024.
The law that applies to terminating periodic tenancies by notice is s51 RTA.
That law changed as from 30 January 2025:- a. a landlord may now give at least 90 days’ notice with no reason required; b. a landlord may give at least 42 days’ notice if certain other circumstances apply (including if the premises are required for the owner or their family to live in as their principal place of residence, or the property has been sold with vacant possession); c. a tenant may give at least 21 days’ notice.
Also, either party may apply to the Tribunal for an order terminating the tenancy under any other section that applies including where premises are unlawful residential premises (discussed further below). Was the landlord’s reason for terminating the tenancy, retaliatory or without grounds? (s54 and 60AA RTA)
[The tenant/s] says that the reason the landlord decided not to renew the tenancy for an eighth fixed term is retaliatory and is because she has made complaints and has applied to the Tribunal.
She says the landlord’s decision has caused her significant stress and anxiety especially as the landlord notified her of its decision only 23 days before the stated end date and that the date fell on the same day as the first Tribunal hearing of her applications.
The law says that if a landlord gives a notice terminating a tenancy that complies with s51 RTA, and the Tribunal is satisfied that in giving the notice, the landlord was motivated wholly or partly by the tenant exercising a right or remedy under the tenancy agreement or any Act, or by any complaint against the landlord, then the notice must be declared to be retaliatory. See section 54(1) RTA.
In addition, a landlord must not give (or purport to give) a tenant a notice to terminate the tenancy or apply (or purport to apply) to the Tribunal for such an order, knowing they are not entitled to do so under the RTA; s60AA RTA.
Breaching s54 or s60AA is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See sections 54(2) and (3), and 60AA and Schedule 1A RTA.
What happened in this case is that the landlord convinced itself that renting out the premises under successive 90-day fixed terms with one day in between them complied with s7 RTA and it could then decide to finish the tenancy on the end date of one of those terms.
They saw it as a legitimate and lawful way for the tenancy to end.
They were mistaken. They could not decide to end the tenancy then.
However, s60AA RTA only applies where a landlord has taken steps to terminate a tenancy knowing they are not entitled to do so.
And s54 RTA only applies when a notice complies with all the s51 rules. The landlord’s 7 May 2024 email doesn’t comply with the s51 rules.
The landlord was wrong in its understanding of the law, and its email telling the tenant the tenancy was ending on 30 May 2024 was invalid, but it did not make this error knowingly. It genuinely thought it could end the tenancy this way.
The landlord has not breached either s54 or s60AA RTA. This means that exemplary damages do not apply.
However, the landlord acted wrongly and invalidly in purporting to end the tenancy on 30 May 2024.
The consequences of this on the tenant have been significant. She was told, with only 3 weeks’ notice, that the landlord considered her tenancy to be ending and on the same day as the first hearing of these proceedings. This threw her into a rush of packing, applying for transitional and emergency housing, looking for another tenancy, moving items into storage, and thorough cleaning, in case her tenancy did end on that first hearing day. I well believe her when she said she’d had sleepless nights and was emotionally and physically exhausted.
The Tribunal may award general damages to recognise this type of loss. I award $500.00. Can the unit be lawfully lived in by the tenant in the way that it has been? If not, has the landlord contributed to or caused this situation and should rent be refunded or exemplary damages be awarded? (s78A RTA).
When the tenant made her application to the Tribunal, she did not know that the lawfulness of her tenancy might be an issue.
Parliament added section 78A RTA to the law in late 2019 giving the Tribunal the power to refund rent, make work orders and award exemplary damages where premises are unlawful.
Premises are unlawful when something in the law prevents them being lived in by a tenant in the way that they have been. 5
The section only applies when a landlord has contributed to or caused the unlawful occupation 6 by failing to check the occupation was lawful (when they 5 Section 78A(2) 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) ... as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation. 6 Section 78A(2)(b) RTA; see footnote above. reasonably should have done so) 7 , or failed to comply with all requirements of building, health and safety laws. 8
The landlord said at the first hearing that the reason for the repeated renewal of the fixed terms of this tenancy was that council consents meant the unit could not be rented out for longer than 90 days at a time. This is also stated in the 90-day clause in the tenancy agreements.
I decided that the regulatory consents for the property should be investigated further; s78A(1) RTA.
The result of this was that written and oral evidence was provided from Hamilton City Council at the later hearings, that:- a. The complex of twelve studio units at 34 Beatty Street were built and approved for “Visitor Accommodation” pursuant to a land use resource consent in September 2016 issued by Hamilton City Council under the Resource Management Act 1991 (“the consent”) 9 ; b. That “visitor accommodation” was defined in the Hamilton City District Plan 2012 as: any land or buildings used for day-to-day accommodation of visitors on a temporary basis (up to three months’ continuous occupation during any 12 month period). It includes motels, hotels, holiday or tourist flats, backpacker accommodation, motor or tourist lodges. It excludes camping grounds and motor camps. c. A resource consent was required because, at the time the consent as granted, visitor accommodation was not a permitted activity in the ‘General Residential’ zone that applied to this address at the time. d. The evidence from the council says that “... visitor accommodation activities are not subject to the same rules and standards required for residential activities such as private, useable outdoor living areas and adequate service areas”. 10 e. The resource consent included these conditions:- Occupancy 3. Evidence shall be provided to the manager, planning guidance showing that no person has resided on site for more than 3 months continuous duration in any 12 month period upon request (excluding the onsite manager). 11 7 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 36 RTA. 8 The landlord shall .....comply with all requirements of buildings, health, and safety under any enactment so far as they apply to the premises; section 45(1)(c) RTA. 9 Land Use Resource Consent 010.2016.8851.001 10 Email from General Counsel, Hamilton City Council to the property management company, 27 September 2024. 11 The words in brackets were added after the council agreed to amend conditon 3; See Land Use Resource Consent 010.2016.8851.002
The number of occupants shall be limited to 12 guests at any one time.
The landlord’s interpretation is that its practice of consecutive 90-day tenancies with one day in between does not breach the resource consent. The one-day between fixed terms means the tenant has not resided continuously.
It argues that the period in between could be as short as one day because no other period is specified in the condition and contrasted this with another property also consented to be used as visitor accommodation. That resource consent said: The maximum length of time any party may reside on the site over a continuous period shall be 3 months. The minimum period of time between stays for an occupant shall be two weeks to ensure that the visitor accommodation remains as short term accommodation.
The council does not agree. It has confirmed in writing:- 12 a. That the tenant’s occupancy of the unit is not an activity that is in accordance with the resource consent because the tenant is “not a visitor being provided temporary accommodation but is instead being provided residential living accommodation”. b. “ ...condition 3 [is] intended to provide clarity about the maximum duration a visitor can be provided accommodation on the site, and assist with monitoring of the activity.”
The council is the statutory body tasked with monitoring compliance with resource consents. I accept its determination that the tenant’s occupancy is not in accordance with the resource consent.
Not every breach of a resource consent may result in it being unlawful to occupy premises.
In this case though, the non-compliance has changed the activity that was consented to. The consented activity is visitor accommodation, and the non- compliance has resulted in ongoing residential accommodation.
The evidence from the council was not specific as to why residential accommodation is not consented apart from saying that visitor accommodation does not require the same sort of facilities as residential activities including rules for outdoor living and service areas.
I note that the 2012 District Plan rules for the general residential zone in which the premises are situated, include that, if a residential apartment building had 12 By General Counsel, for Hamilton City Council. been consented 13 , that there be 150m 2 of land area per residential unit 14 and outdoor living areas of at least 12m 2 per unit. 15
The resource consent records the land area of the complex of 12 units as 690m 2 . In other words, this complex may have only been approved 4 units for residential apartment living (150m 2 of land for every unit).
[The tenant/s] unit has no outdoor living area (exclusive or shared).
I also note that the size of each unit is shown on the resource consent plans as being 20.5m 2 and they are studio units. I have not investigated the further rules for residential living or apartment buildings and there is no evidence as to whether a studio unit of this size would have been consented for residential living in this zone.
Regardless, as [The tenant/s] is not a visitor being provided temporary accommodation and the unit is not consented or permitted in the residential zone as a residential unit, the premises cannot lawfully be occupied for the particular purpose they have been, as ongoing residential accommodation; 78A(2)(a) RTA.
The second part of s78A RTA is that the landlord must have been responsible for the unlawful occupation by either failing to take reasonable steps to check there was no legal impediment to the occupation (s36 RTA), or by failing to comply with any building or health and safety enactment (s45(1)(c) RTA).
I am satisfied that the landlords (owners and agents) are responsible for the unlawful occupation and have breached both s36 and s45(1)(c) RTA.
An owner of a unit has a responsibility under the UTA to comply with all laws relating to the use, occupation, and enjoyment of the unit; s80(1)(d) UTA.
The landlord’s agent is in the business of managing property so can be expected to ask the owner of the property for all relevant information about the lawful use of the unit.
In this case, the agent not only could be expected to know but had actual knowledge that the units in the complex could only be used for visitor accommodation.
This is because it had engaged with the enforcement team from the council in 2021 regarding a complaint the council had received that this complex of units was not being used for visitor accommodation but instead as residential apartments. 13 Which would also have required a resource consent as it was not a permitted activity but a discretionary activity. 14 Rule 4.1.2(a) Hamilton City Operative District Plan 2012. 15 Rule 4.1.2(h) Hamilton City Operative District Plan 2012.
Emails reveal that the council made it clear to the landlord at that time that the use of the premises for ongoing residential accommodation was a breach of the resource consent and that only one visitor may occupy each unit at a time.
The limit of one occupant per unit is another one of the resource consent conditions because the maximum occupancy for visitor accommodation is 12 guests. 16
The property manager assured the council officer that she would ensure that the units were returned to visitor accommodation right away. The council then closed the complaint.
The council also told the landlord that the only way to allow ongoing residential accommodation was for all owners of the units to apply to the council for a formal change to the resource consent.
The landlord knew that ongoing occupation of the units, for periods of more than 3 months within a 12-month period, did not comply with the resource consent. Despite this:- a. The landlord did not take reasonable steps to check with the council that its new process of granting tenants more than one 90-day fixed term tenancy, with one day in-between the term dates, would comply with the resource consent. This breaches s36 RTA. b. The landlord has failed to comply with the resource consent by agreeing to the tenant’s ongoing occupation of the unit. This breaches section 9(3) and s338 Resource Management Act 1991 and so is a breach of s45(1)(c) RTA. c. The use of the unit as a residential dwelling also breaches regulation 5(3) Housing Improvement Regulations 1947 which require a kitchen (or kitchenette) to be in a separate room from any bedroom/living area.
There is no evidence or suggestion that steps have been taken by the landlord to apply to council for a change to the resource consent.
The tenancy premises are unlawful residential premises because they may only be occupied by a single occupant who is a visitor being provided temporary accommodation of up to three months’ continuous occupation during any 12- month period and the landlord has caused or contributed to that unlawful occupation; s78A RTA.
I have made a declaration that the premises are unlawful residential premises.
I have addressed all other remedies at the end of this decision. 16 Except if located in the special Visitor Facilities Area which is an area of motels (and similar) located at Ulster Street, Hamilton; Rule 4.1.3 Hamilton City Operative District Plan 2012. Has the landlord breached its maintenance and quiet enjoyment obligations to the tenant? (s38 and s45(1)(b) RTA)
I deal with the maintenance and quiet enjoyment claims together because the issues and remedies are related.
[The tenant/s] has raised several issues with her landlord and the body corporate since early January 2024. The detail of these is contained in many emails and summarised in two formal notices of remedy [The tenant/s] sent to her landlord (dated 16 February 2024 and 29 February 2024) and which were filed with her application to the Tribunal. 17
In summary, she says there are ongoing rubbish, carparking, security and noise issues at the complex. Her application seeks $2,000.00 in compensation for inconvenience, stress and expenses (fly spray, batteries for door locks, making signs to put up in the complex).
I have not referred in detail to all the issues raised however the parties can be assured that I have considered all the written and oral evidence.
Section 38 RTA promises a tenant “quiet enjoyment” of the premises that they rent and says: “a landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant”.
Section 45(1)(b) RTA says: “The landlord shall provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”.
In both sections, the word “premises” includes “facilities”; s38(4) and s45(5) RTA.
This is important because “facilities” is defined as including “all facilities provided by the landlord for the non-exclusive use and enjoyment of the tenant” such as storage and carparking areas, laundry, cooking, lifts and stairways, rubbish storage and disposal facilities, shared toilets and bathrooms, heating and air-conditioning, 17 The maintenance issues include ongoing smell, flies and maggots from rubbish, rubbish overflowing onto the common area; security problems as the front door to the complex does not automatically close and lock; carpark lights not working properly; letterboxes broken and overflowing; gardening and exterior building cleaning not being done. Noise and disturbance issues include carparking problems with other occupants/visitors/Airbnb cleaners parking in “no parking” common areas thereby blocking the main driveway and access to rubbish and lockboxes, and in unit carparks allocated to others; the slamming of heavy doors; late night music and talking/yelling noise from other units and in particular, short-term Airbnb guests and cleaners; Airbnb and other occupants and cleaners responding rudely and aggressively to the tenant’s requests; and ongoing noise from the bathroom fan from unit 6. communication facilities, recreational areas, lawns, gardens, and outhouses; see the definition in s2 RTA.
As well as the rules in a tenancy agreement and in the RTA, every unit title development must have body corporate operational rules which help the body corporate manage the units and prevent disputes between people who live there.
Body corporate operational rules are taken to be terms of the tenancy agreement (and a copy of these must be included with every tenancy agreement); s16B RTA.
The operational rules for this body corporate development are:
An owner or occupier of a unit must not – (a) Damage or deface the common property; (b) Leave rubbish or recycling material on the common property; (c) Create noise likely to interfere with the use or enjoyment of the unit title development by other owners or occupiers; (d) Park on the common property unless the body corporate has designated it for car parking, or the body corporate consents; (e) Interfere with the reasonable use or enjoyment of the common property by other owners or occupiers.
An owner or occupier of a unit must dispose of rubbish hygienically and tidily.
These rules are directly relevant to the issues raised by [The tenant/s].
[The tenant/s] has spent time and effort communicating with her landlord and the body corporate and dealt with many of the day-to-day issues herself (including cleaning rotting food from the communal laundry bins and treating the flies and maggots, picking up overflowing rubbish, and replacing batteries in the automated shared entry doors).
The evidence shows that her landlord was active in referring her complaints to the body corporate and following these up but said it could do no more than this. The body corporate manager took some practical steps (such as notifying unit owners the occupants of their unit were not parking correctly) but said that to increase services such as rubbish collection or pest control it had to wait for the owners of the 12 units to have their annual general meeting and approve any action.
[The tenant/s] view is that neither her landlord nor the body corporate has taken responsibility for resolving the issues.
My decisions on the specific issues are below.
Rubbish issues in the common areas: My assessment is that the landlord failed to reasonably maintain the rubbish storage and disposal facilities. Emails and photographs prove that the tenant repeatedly raised the issue, that at its worst it negatively affected her quality of life for about 11 weeks in the summer of 2024 18 , and that cleaning and additional rubbish collections were not actioned until [The tenant/s] had involved the council environmental health team. The tenant spent her own time, money, and effort on controlling flies, maggots, smell and developing a rubbish management system for the complex. 19 As the body corporate did not act within a reasonable time, I suggest that the landlord should have notified the body corporate managers that it would arrange urgent cleaning and pest control and pass this cost on to the body corporate.
Other maintenance issues (carparking, lights, security etc): The evidence is not sufficient to prove these issues occurred or were not dealt with in a reasonable timeframe. That said, I accept the tenant’s description of events.
Carparking: [The tenant/s] did not provide evidence to prove these claims in the sense that there were no photographs to show people parked incorrectly against the body corporate rules. However, again I accept her version of events that this did occur sometimes.
Noise in common areas and from other units: as with the above, there was no direct evidence (such as audio or video recordings) and no direct evidence from any other occupants. I accept the tenant has felt disturbed by noise (door slamming, cleaners and Airbnb guests yelling) but without more evidence I cannot say her quiet enjoyment has been breached. The landlord could contact the owner of unit 6 about the bathroom fan (eg a timer could be installed to turn this off after a set period of time) and contact other owners if the occupants of their units are disruptive.
Breach of the tenant’s quiet enjoyment: Quiet enjoyment is the right to live undisturbed and as you choose to live (within the bounds of your obligations to others). The tenant says she could not do this because there was no effective way to raise complaints or concerns about other units or the common areas. Her landlord told her it could only refer issues on to the body corporate – and the body corporate said it had to wait for an AGM of the owners (even to have day to day issues like rubbish, parking and minor maintenance attended to).
The landlord’s view is that it has no power or authority to maintain common areas or interact with other unit occupants or owners in a unit title complex and must rely on the body corporate to do so.
This is not correct:- a. The landlord has responsibilities to the tenant not only for the unit they are renting but also for the common facilities (common property) because of 18 [The tenant/s] unit is directly above the laundry and near the communal rubbish area. She describes large numbers of flies and bad smells. 19 Signage including to encourage a system of using one bin at a time, then moving on to the next bin once the first was full. And so on. s45(5) RTA. It cannot simply say “this is for the body corporate to deal with”. 20 b. The Unit Titles Act 2010 stipulates that unit owners, as well as the body corporate, have the right to enforce the operational rules; s79(g) UTA. c. In this case, the owners of the unit live overseas. Their agent is not only responsible under the RTA (s16A RTA) but also has the power to enforce the body corporate operational rules; s81(3) UTA. d. The landlord could have directly approached the other owners and unit occupiers. In fact, the agent manages several of the other units.
I am satisfied that the landlord has caused or permitted a breach of the tenant’s right to quiet enjoyment of her tenancy by failing to take effective actions to address the maintenance and noise issues. This is a breach of s38 RTA.
The landlord could have met with the body corporate managers, contacted owners of other units, sent its own notices regarding the body corporate rules, and enforced the body corporate rules in the Tenancy Tribunal.
The tenant wants the Tribunal to make orders requiring the landlord or the body corporate to fix the issues.
The body corporate is responsible for the repair and maintenance of the common areas and for administration; s138 UTA. It must keep a solvent operating account (s115 UTA) and developments of 10 or more units should have a committee in place to make operational decisions (s112 UTA).
I cannot make orders requiring the body corporate to do anything because the body corporate is not a party to these proceedings.
I have not made work orders requiring the landlord to do anything because the specific issues have either been addressed (rubbish) or are better dealt with by the landlord and body corporate working together (noise, door security, carparking etc).
I suggest the landlord and body corporate meet to review maintenance and quiet enjoyment issues at the complex and develop plans and processes to address these. For example, setting up a body corporate committee with an operational budget and authority to remedy day-to-day and urgent issues on short notice and putting in place regular cleaning and maintenance of common areas.
Any of the landlord, agent, or body corporate can apply to the Tribunal under the UTA to enforce the body corporate operational rules against unit owners, occupants, or the body corporate. 20 As the landlord did, in many emails to the tenant.
I consider compensation for the breach of maintenance and breach of quiet enjoyment at the end of this decision. Has the landlord breached the healthy homes ventilation standard because the rangehood is not externally ducted or does an exemption apply? (s45(1)(bb) RTA)
[The tenant/s] claims that the landlord has breached the landlord’s obligation under section 45(1)(bb) RTA to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) for ventilation.
She says the rangehood extractor fan in the kitchenette does not vent the extracted air to the outdoors. She says it pushes the air into the cabinet above the rangehood and the force of this blows the cabinet doors open thereby blowing the air onto the food that is being cooked.
The HHS requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity and that these vent to the outdoors. 21
The HHS does provide exemptions in specific circumstances: regulation 24 says: 24 Exemption from mechanical ventilation standard if extractor fan not reasonably practicable to install (1) A kitchen or bathroom need not comply with regulation 23 if all of the following apply: (a) at the commencement of the tenancy,— (i) the room does not have an extractor fan or qualifying ventilation: (ii) it is not reasonably practicable to install an extractor fan so as to comply with the requirements of regulation 23(2) and (3): (b) when the room was built or converted into a kitchen or bathroom, not having an extractor fan was lawful: (c) if not having an extractor fan was lawful only because the room met alternative ventilation requirements, at the commencement of the tenancy the room still meets those requirements. (2) This exemption ceases to apply if, during the term of the tenancy, it becomes reasonably practicable to install an extractor fan so as to comply with the requirements of regulation 23(2) and (3).
The landlord accepts that the rangehood does not duct to the outdoors. The representative explained that it is a recirculating fan that takes air into the unit through a filter and then pushes the filtered air back out into the cabinet above the rangehood. 21 The definition of “extractor fan” is “an extractor fan that vents extracted air to the outdoors”; see regulation 3 of the Residential Tenancies (Healthy Homes Standards) 2019.
The ventilation section of the healthy homes statement in the tenancy agreements state that the kitchen extractor fan was installed prior to 2019 and is: Not ducted to exterior – not possible (exempt)
The landlord says that it is not reasonably practicable to install an externally ducted kitchen extractor fan and therefore the exemption applies.
It says that it investigated having this done in 2021 at the same time as a heatpump was installed into the unit to comply with the HHS. The landlord provided an email sent to it at that time from the office of an electrical company which says: When we got access into the ceiling on Wednesday we found that all the ceiling has fire rated fittings to comply with the fire standard. After talking with a Fire Technician and discussing the job we were advised that this can not be done by us and would need to go back to a Fire engineer to design and then be approved to comply with the fire building regulations. Unfortunately we are not licenced to do this so we could not carry out the works.
The tenant questions this. She provided evidence that:- a. Another unit in the complex has had external ducting added to the rangehood; b. The bathroom fan in her unit is ducted externally and the exterior grill is located in the soffit so appears to be ducted through the ceiling; c. The distance between the bathroom fan and the rangehood is only about
5 metres so she doesn’t see why the rangehood can’t be ducted outside; d. A quote that she has obtained for $477.25 from the same electrical company that installed the external ducting to the other unit in the complex.
In this case I have determined that the landlord’s reliance on the email advice from 2021 is not sufficient to show that it is not reasonably practicable to duct the rangehood to the outside. My reasons for this are:- a. The exemption in regulation 24 has several criteria all of which must be met. The landlord has not supplied evidence that the current recirculating rangehood was lawful at the time it was installed, such as the code of compliance for the unit if it was installed when first built, or the electrical compliance certificate; reg 24(1)(b) HHS Regulations; and b. The exemption ceases to apply if, during the term of the tenancy, it becomes reasonably practicable to do so; reg 24(2) HHS Regulations. The tenant has provided an example of the rangehood in another unit being ducted outside and a quote from the same electrician who did so. Once the tenant gave that information to the landlord, I consider that the landlord should have further investigated whether the work could be done without breaching fire regulations or significant expense. As far as I am aware, the landlord has not done so. It might be that the investigation would have resulted in the same outcome, but it is reasonable to expect the landlord to obtain a second opinion.
The landlord has breached s45(1)(bb) RTA which is an unlawful act.
If the landlord intends to rent out the premises for 90-day tenancies, it must comply with the HHS. It should provide evidence that it has obtained a second expert opinion as to whether the rangehood can be ducted externally.
I award compensation of $250.00 in recognition of some detriment.
I do not award exemplary damages as am satisfied the landlord genuinely thought that it was not reasonably practicable to duct the rangehood externally, so the breach was not intentional.

Did the landlord provide the healthy homes information requested by the tenant?

(s45(1AC) RTA).

[The tenant/s] says that the landlord has not supplied the records or other documents required to show that an exemption applies from the external ducting requirement of the ventilation standard. In her view, it is not sufficient that the only information the landlord sent her is the wording from the 2021 email sent to them by the electrical company that investigated the ducting. She says she was told by the property manager that there was a signed exemption from a healthy homes standards inspector done as part of a HHS compliance report but has not been provided this.
The legal requirement is that a landlord must provide healthy homes standards compliance information within 21 days of receiving a request from a tenant and to fail to do so without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AC), (1AD) and Schedule 1A Residential Tenancies Act 1986.
The question is what sort of information a landlord must provide and how far they must go to obtain it.
The place to start is s123A(1)(e) RTA which says a landlord must retain during, and for 12 months after a tenancy ends, “sufficient relevant records or documents” as reasonably provide evidence of the landlord’s compliance with the healthy homes standards in relation to the tenancy.
The definition of relevant records or documents is found in regulation 40 Residential Tenancies (Healthy Homes Standards) Regulations 2019 and means: (a) reports or other records of inspections of the premises, tenancy building, or installed or provided things (whether the inspections were done during or before the commencement of the tenancy), including photographs or video recordings: (b) records of any installation, maintenance or repair, or other work carried out at the premises or tenancy building (whether the work was done during or before the commencement of the tenancy): (c) records of calculations of a living room’s required heating capacity (for example, results from a heating capacity calculator (as defined in regulation 10)): (d) product manuals or other manufacturer’s information relating to installed or provided things: (e) certificates or other documents issued under or for the purposes of an enactment or a bylaw (for example, a code compliance certificate or building warrant of fitness under the Building Act 2004): (f) reports or other documents issued by a local authority (as defined in section 5(1) of the Local Government Act 2002) in relation to the premises or tenancy building (for example, a land information memorandum (LIM) report): (g) documents or records relating to the construction of, or work carried out at, the premises or tenancy building.
The landlord has not provided a healthy homes inspection report in evidence or referred to one. There is no requirement to have an inspection done or to provide any sort of certificate to prove that an exemption applies. Regulation 40 HHS Regulations says a landlord does not have to go out to seek or create a document that it does not otherwise hold.
However, I do consider that the landlord had an obligation to go further than simply quote the wording from the 2021 email to the tenant, particularly as it did not explain where this advice was from or what, if anything, had been done to verify or check whether it was correct.
It should also have supplied the code of compliance certificate or other documentation to show that the existing rangehood complied with the Building Code at the time it was installed, as this is part of the regulation 24 criteria.
Also, as I have decided above, the landlord should have done more to investigate whether external ducting could be installed.
The landlord did intentionally breach this requirement as it should know that it is required to provide all the information required to prove an exemption to the HHS. It is not enough to rely on or provide an unreferenced email. I award exemplary damages of $250.00. Has the landlord provided signed tenancy agreements before the tenancy commenced? (section 13 RTA)
[The tenant/s] says the landlord did not provide her a signed copy of all seven tenancy agreements before each term commenced.
This is a legal requirement in section 13 RTA and a breach is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A RTA.
The landlord did not provide a signed tenancy agreement in evidence for every one of the seven terms. The second term (28/11/2022 to 26/02/2023) and fifth term (31/08/2023 to 29/11/2023) agreements are not signed.
It is more probable than not that it did not provide a signed copy of all seven tenancy agreements to the tenant before each term commenced.
This is a breach, but I have not awarded compensation as there is no obvious detriment or consequence to the tenant. She had been given the first tenancy agreement and probably most of the others so could refer to these or email the landlord with any specific question.
I do award modest exemplary damages of $150.00 as a landlord should know and comply with its obligations.
It also diminishes the landlord’s argument that it considered every fixed term to be a new and separate tenancy if it cannot show that every agreement was signed and provided to the tenant.

Did the landlord give the tenant notice that the premises were on the market for sale?

(s47 RTA).

A landlord must give a tenant notice that tenancy premises are on the market for sale; s47 RTA.
The landlord notified the tenant of this by email on 29 September 2022 so has complied with its obligations. This claim is dismissed. Remedies Compensation
In my view, there is a common cause to nearly all the issues raised by the tenant in these proceedings.
That is, that the landlord decided to rent out the unit for use in a way that it was not lawfully consented for.
The units are intended for short-term, visitor accommodation of no more than 12 people at one time.
Instead, they have been rented out to a mix of long-term residents and short- term guests.
These types of occupation are incompatible in some ways. Short-term guests don’t have ongoing relationships with their neighbours so they may be noisier. Commercial cleaners and other service contractors may come and go more frequently and disturb residents. Long-term users of laundry and rubbish facilities notice if these are not adequate.
In other words, the detriment to the tenant from the maintenance and quiet enjoyment issues she raised is mostly a result of the type of use which was unlawful. And this was directly brought about by the landlord.
This is why it make sense to consider the compensation for the issues all at once.
My decision that the premises are unlawful residential premises means it is appropriate to consider compensation as a refund of rent. The Tribunal has a broad discretion to consider the special circumstances of the case, the nature of the premises and what would be fair; s78A(4)(a) RTA.
The factors I have taken into account are:- a. That the landlord structured the tenancy to try to get around the rules in the resource consent. b. That it should have taken steps to check its interpretation of the resource consent rules because of the previous complaint to the council in 2021 and because the agent is a professional property management company. c. The tenant has been inconvenienced by the problems with rubbish, noise and parking caused partly by being granted long-term accommodation in a complex that was never intended to house permanent residents alongside visitors. Those two uses are not compatible in such close proximity. d. The tenant has benefitted from the tenancy and chosen to continue living here. From the evidence available, she is largely content with the facilities of her unit. e. The unit is small (it is a studio with no separate bedroom), with a small kitchenette, and there is no outdoor space (such as a balcony or common outdoor area). However, there is insufficient evidence to allow me to assess how these facilities compare with what would be required for permanent residential accommodation. f. The tenant has paid $310.00 per week for rent (including water, power, internet) up to 2 March 2024 when this increased to $320.00 per week. g. The landlord has benefited in receiving rent and being able to consistently rent out accommodation that is not lawfully able to be rented out in a long- term way. h. The landlord has received approximately $250.00 per week in rent after paying for water, power, internet.
The tenancy so far is 127 weeks in duration. My assessment is that a rent refund of $30.00 per week is fair taking the above factors into account. This is $3,810.00. Declarations, work orders, exemplary damages
The Tribunal may make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.
I have made a declaration that the landlord may terminate the tenancy by giving the tenant no less than 90 days’ written notice to terminate the tenancy. This will give clarity to both parties as this tenancy must end so that the landlord is no longer in breach of the resource consent.
The tenant may terminate the tenancy by giving not less than 2 days’ notice to the landlord; s56A(1) RTA.
The Tribunal may also award exemplary damages where satisfied a landlord has intentionally failed to comply with s45(1)(c); see s78A(5) RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I have decided to award exemplary damages. The landlord intentionally breached the resource consent. It knew or should have known that continuing [The tenant/s] occupation past the first 90-day term was not allowed because it had already dealt with the council after the 2021 complaint.
The factors to be considered are largely covered by my considerations of compensation (above). The landlord’s intent was to allow ongoing occupation when this was not allowed, the effect on the tenant has been detriment caused by residential and visitor uses in the same complex, her interests are that the situation should never have arisen. I make this award largely to recognise the public interest and public policy rationale in signalling to landlords that they cannot ignore or manipulate the terms of a resource consent. I award $1,800.00. Filing fee and suppression
The tenant has been substantially successful so is awarded the filing fee and her name is suppressed from the published order, as sought.

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 4821502 — net $6,780.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: unlawful premises, maintenance, quiet enjoyment	$3,810.00	unlawful premises, maintenance, quiet enjoyment
Compensation: invalid notice of termination	$500.00	invalid notice of termination
Exemplary damages: breach of resource consent	$1,800.00	breach of resource consent
Compensation: ventilation standard	$250.00	ventilation standard
Exemplary damages: breach of HHS information	$250.00	breach of HHS information
Exemplary damages: not providing copies of all tenancy agreements	$150.00	not providing copies of all tenancy agreements
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,780.44
Total payable by Landlord to Tenant	$6,780.44

Claims and awards for application 4821502 — net $6,780.44 NZD. Verify on MoJ.

Compensation: unlawful premises, maintenance, quiet enjoyment

Amount: $3,810.00
Awarded to: Tenant
Reason: unlawful premises, maintenance, quiet enjoyment

Compensation: invalid notice of termination

Amount: $500.00
Awarded to: Tenant
Reason: invalid notice of termination

Exemplary damages: breach of resource consent

Amount: $1,800.00
Awarded to: Tenant
Reason: breach of resource consent

Compensation: ventilation standard

Amount: $250.00
Awarded to: Tenant
Reason: ventilation standard

Exemplary damages: breach of HHS information

Amount: $250.00
Awarded to: Tenant
Reason

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee

Order

The landlord’s notification to the tenant dated 7 May 2024 that the tenancy was ending is invalid and of no effect.
The tenancy of [The tenant/s] at Unit 7, 34 Beatty Street, Melville, Hamilton is a periodic tenancy and became so on 31 May 2024.
The tenancy premises are unlawful residential premises because they may only be occupied by a single occupant who is a visitor being provided temporary accommodation of up to three months’ continuous occupation during any 12- month period.
The landlord may, at any time, terminate the tenancy by giving not less than 90 days’ written notice to the tenant.
The tenant may, at any time, terminate the tenancy by giving not less than 2 days’ written notice to the landlord.
Eves Realty Limited, Gil Roesler and Rebecca Roesler must pay [The tenant/s] $6,780.44 immediately, calculated as shown in the table below:

Reasons

[The tenant/s] and the landlords’ representatives attended all hearings.
The tenant has applied for compensation, exemplary damages and work orders relating to her tenancy of one unit in a complex of 12 studio units.
This complex of units is held in a form of property ownership called a “unit title”. A unit title development contains separate units and common property. The separate units can be bought and sold individually. The common property is owned and managed by a “body corporate” which is a separate legal entity. Usually, the owners of the units are the members of the body corporate. See section 4 of the Unit Titles Act 2010 (UTA).
The Tenancy Tribunal has jurisdiction over disputes between residential landlords and tenants under the Residential Tenancies Act 1986 (RTA).
The Tribunal also has jurisdiction over disputes between owners, occupiers, the body corporate, and service contractors under the Unit Titles Act 2010; s171 UTA.
The tenant has brought this application under the RTA so that is how I have addressed her claims. Where relevant, I may also refer to the sections of the UTA that may apply. However, I have not considered remedies under the UTA.
“The landlord” means both the owners of this unit and its agent. The owners live overseas so its agent has all the rights and responsibilities of the landlord; s16A(5) RTA.
The landlord has not made an application to the Tribunal. Summary
[The tenant/s] has lived in this unit since 28 August 2022.
She first lived in another unit in the complex for 90 days (managed by a different property management company) and then heard from a neighbouring tenant that she might be able to stay longer in some of the other units.
This landlord and [The tenant/s] initially signed a tenancy agreement for a fixed term from 28 August 2022 to 26 November 2022.
The tenancy agreement included the below clause: (“the 90-day clause”) 90 Day Tenancy - this Tenancy is set to a 90 day maximum and will not automatically convert to a periodic tenancy due to Council Consents. Tenancy terminates at the end of the fixed term.
The tenancy did not terminate at the end of the fixed term.
Instead, the parties agreed to another fixed term of about the same length and went on to do so a total of seven times on essentially the same conditions (including the 90-day clause).
The most recent tenancy agreement records a fixed term from 2 March 2024 to 30 May 2024.
In late February and March 2024, the tenant applied to the Tribunal 1 asking for orders to fix maintenance issues and disturbance from other unit occupiers.
On 7 May 2024, the landlord notified her the tenancy was ending, and she was required to vacate at the end of that term – on 30 May 2024.
The tenant says that this is retaliatory or without grounds.
At the first hearing, the landlord told the Tribunal that it could only offer the tenant 90-day tenancies because of the terms of council consents for this unit title complex.
The Tribunal chose to investigate this further and sought evidence from the council.
I made an interim order at the first hearing that the tenancy would not terminate pursuant to the landlords’ notice.
This decision finalises all issues. 1 Applications 4821502 on 28 February 2024 and 4842640 on 21 March 2024.

What are the issues?

The main issues to be decided are:- a. Was the landlord correct that it could choose to end the tenancy on 30 May 2024 and that the usual notice requirements did not apply? (s7, 51 and s60A RTA). i.Does s7 RTA apply? ii.What type of tenancy is this? b. Was the landlord’s notice that the tenancy was ending retaliatory or without grounds? (s54 and s60AA RTA) c. Can the unit be lawfully lived in by the tenant in the way that it has been? If not, has the landlord contributed to or caused this situation? (s78A RTA).
Other specific issues are:- a. Did the landlord breach its maintenance obligations? (s45(1)(b) RTA) b. Has the landlord caused or permitted interference with the reasonable peace, comfort, or privacy of the tenant in her use of the premises? (s38 RTA) c. Has the landlord breached the healthy homes ventilation standard because the rangehood is not externally ducted or does an exemption apply? (s45(1)(bb) RTA. d. Did the landlord provide the healthy homes information requested by the tenant? (s45(1AC) RTA). e. Did the landlord provide signed tenancy agreements before the tenancy commenced? (s13 RTA) f. Did the landlord give the tenant notice that the premises were on the market for sale? (s47 RTA)
Where a breach is proven, the Tribunal must also decide the extent of any remedies including declarations, orders requiring a party to remedy a breach, compensation (which may be a refund of rent), and exemplary damages.
Compensation is when the applying party says that they have suffered a loss or disadvantage because of a breach by the other party.
Exemplary damages are like a fine or a penalty and can only be awarded when a party has intentionally committed a breach specified as an “unlawful act” (these are listed in Schedule 1A Residential Tenancies Act 1986). The Tribunal must decide whether it is just to award these after considering the breaching party’s intent, the effect of the act, the interests of the innocent party, and the public interest; see s109(3) RTA.
[The tenant/s] has applied for work orders, compensation, and exemplary damages on all claims. Was the landlord correct that it could choose to end the tenancy on 30 May 2024 and that the usual notice requirements did not apply? (s7, 51, 54 and s60A RTA).
Seven fixed term tenancy agreements have been provided in evidence. It is not clear whether all the agreements were signed but it is not disputed that the terms of each were agreed to by both parties.
The documented fixed terms are 28/08/2022 to 26/11/2022; 28/11/2022 to 26/02/2023; 28/02/2023 to 29/05/2023; 31/05/2023 to 29/08/2023; 31/08/2023 to 29/11/2023; 01/12/2023 to 29/02/2024; 02/03/2024 to 30/05/2024.
Importantly, there is one day between the end date of one term and the start date of the next.
The parties discussed entering into a new fixed term as early as ten days after the tenancy first started when [The tenant/s] emailed the landlord and asked: if I’m able to renew my lease if I need to?”
The landlord replied (on 8 September 2022): In regards to renewing your lease, as they are 90 day tenancies we cannot renew as such however we can start a new 90 day tenancy with one day in between. This means you are required to vacate the property for 24 hours then you can move back in. Unfortunately the consents on the property don't allow us to keep you in the property for more than 90 consecutive days so this is the only way we can do it.
The parties agree 2 that the usual practice prior to each new tenancy agreement being entered into was that the landlord would email the tenant two to four weeks before each fixed term expired, ask if she wished to remain in the property for a further 90-day period, and advise that if she did she would need to sign a new agreement and vacate the property for 24 hours.
This happened prior to each of the new fixed terms. However, on 7 May 2024, the landlord emailed the tenant and said: this letter serves as a reminder that your 90 day tenancy is ending and that you will be vacating 7/34 Beatty Street, Melville on 30/05/2024.
This shocked the tenant. She had been expecting the tenancy to be renewed for another fixed term as it had been on the previous occasions. 2 In oral evidence in the hearings and reflected in emails between them.
The tenant says the landlord can’t just decide the tenancy is ending and only give her 23 days’ notice of this.
The landlord says it does not need to have a reason and it does not need to comply with the notice requirements because this is a short fixed-term tenancy of 90 days or less which the parties agreed would end on the last day of the term as is stated in the 90-day clause. 3

Does section 7 RTA apply to this tenancy?

The landlord is referring to section 7 RTA.
Section 7(1) says that the usual rules about market rent (sections 25 to 28 RTA) and giving notices to terminate a tenancy (s51 RTA) do not apply to: .... a tenancy for a fixed term of not more than 90 days (whether or not terminable by notice) if, before the commencement of the tenancy, the parties agree in writing that the tenancy will not be extended or renewed to give a total length of the term in excess of 90 days.
Section 7(2) RTA says that:- ... where such a tenancy is extended or renewed, whether once or more than once, with the result that the total length of the term exceeds 90 days, on the expiry of that period of 90 days the tenancy shall become subject to sections 25 to 28 and 51 (as well as all the other provisions).
The most recent fixed term of the tenancy started on 2 March 2024 and ended on 30 May 2024. This is a term of exactly 90 days.
The landlord’s view is that the tenancy was not “extended or renewed” (in the words of s7(2) RTA). It says that each of the seven fixed term of this tenancy are a new and distinct tenancy.
It says this is because there is a one-day gap between each documented term. For example, the first term ended on 26 November 2022 and the next term started on 28 November 2022. There is a one-day gap between all of the terms.
The landlord’s view is that s7(1) RTA applies to each one of the seven fixed terms and that the 90-day clause in the tenancy agreement means it had the right to choose to end the tenancy at the end of the last fixed term (on 30 May 2024).
The tenant says this cannot be right because there have been seven fixed terms, all with the 90-day clause in the tenancy agreement, and it wouldn’t be fair if the landlord could suddenly decide to enforce the clause this time. 3 The landlord’s evidence includes an extract from the Tenancy Services website which describes the rules for short fixed-term tenancies as including that “no further notice to end the tenancy needs to be given”; www.tenancy.govt.nz/starting-a-tenancy/types-of-tenancies/short-fixed-term-tenancy/
I agree with the tenant.
It is true that the parties documented terms of certain start and end dates, said in emails to each other that the tenant would vacate for 24 hours between each term, and included the “90 Day Tenancy” clause in each of the seven tenancy agreements. However, these written terms did not reflect what was happening in practice.
In practice, the tenancy did not end after the first term. The parties agreed before it ended that a new fixed term would begin. In fact, the parties were discussing this as early as ten days after the start of the tenancy.
Neither did the tenancy end for 24 hours between each term. I asked the parties in the hearing whether the tenant did move out for 24 hours between terms. They both agreed that she did not vacate or move any of her belongings out of the unit in between the dates of the fixed terms.
On paper, the tenancy ended for one day but, in reality, it continued between each of the documented fixed term dates.
Also, in legal wording, a “renewed” tenancy means a new tenancy. 4
So, when s7(2) RTA refers to a tenancy being extended or renewed so that the total length of the term is more than 90 days, the word renewed means entering into a “new” tenancy.
My decision is that this is not a tenancy to which s7(1) RTA applies because the total length of the term of the tenancy is more than 90 days long:- a. Firstly, the very first term of the tenancy was 91 days long (28 August to 26 November 2022). It was one day too long for s7 to apply. b. Secondly, even if the first term had been not more than 90 days long, the tenancy was renewed six times resulting in a total length of term of more than 90 days so s7(2) RTA would have applied.

What type of tenancy is this?

Section 7(2) RTA makes it clear that if the total term exceeds 90 days “all the other provisions” of the RTA apply.
One of the provisions, or sections, that applies to fixed term tenancies of more than 90 days is s60A RTA. 4 The “renewal” and “extension” of a tenancy mean different things. A renewal means a new tenancy starts and all previous agreements are no longer in force. An extension of a tenancy means the original contract stays in place but the end date of the term changes. See Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at [48.R.8.13.10].
At the time that the landlord sent its email (7 May 2024), s60A RTA provided that a fixed term tenancy of more than 90 days becomes a periodic tenancy unless:- a. Before the expiry, the parties have both agreed to renew, extend, or not continue it, or b. the tenant gives 28 days’ written notice to the landlord they do not wish to continue the tenancy, or c. before the expiry, one or other of them gives notice to terminate the tenancy in accordance with the usual rules for periodic tenancies.
Section 60A RTA has applied to this tenancy since the very first term (because the first term was 91 days long).
The parties both agreed to renew the fixed term tenancy several times; s60A(2)(a) RTA.
Then, the landlord decided not to renew it.
But the landlord could not terminate the tenancy unless it complied with the usual rules which include s60A and s51 RTA.
At the time that the landlord sent its email (7 May 2024), the rules in s60A and s51 RTA included that one of the reasons allowing a landlord to terminate a periodic tenancy needed to apply (for example, that the premises were to be put on the market for sale within 90 days) and that the correct minimum period of notice had to be given. This is either 63 or 90 days depending on the reason.
Section 51 RTA also requires that a notice be in writing, identify the premises, specifies the date by which the tenant must vacate and is signed; s51(3) RTA.
The landlord did not comply with s60A and s51 RTA. It did not give a reason and did not give the minimum period of notice.
I made an interim decision on 30 May 2024 that the tenancy would not terminate that day to preserve the tenant’s position until all evidence could be heard and considered.
I have now made a final declaration that the landlord’s email to the tenant on 7 May 2024 that the tenancy was ending was invalid and of no effect. It could not lawfully do this; s77(2)(f) RTA.
I have also made a declaration that the tenancy is now a periodic tenancy pursuant to s60A RTA and became so on 31 May 2024.
The law that applies to terminating periodic tenancies by notice is s51 RTA.
That law changed as from 30 January 2025:- a. a landlord may now give at least 90 days’ notice with no reason required; b. a landlord may give at least 42 days’ notice if certain other circumstances apply (including if the premises are required for the owner or their family to live in as their principal place of residence, or the property has been sold with vacant possession); c. a tenant may give at least 21 days’ notice.
Also, either party may apply to the Tribunal for an order terminating the tenancy under any other section that applies including where premises are unlawful residential premises (discussed further below). Was the landlord’s reason for terminating the tenancy, retaliatory or without grounds? (s54 and 60AA RTA)
[The tenant/s] says that the reason the landlord decided not to renew the tenancy for an eighth fixed term is retaliatory and is because she has made complaints and has applied to the Tribunal.
She says the landlord’s decision has caused her significant stress and anxiety especially as the landlord notified her of its decision only 23 days before the stated end date and that the date fell on the same day as the first Tribunal hearing of her applications.
The law says that if a landlord gives a notice terminating a tenancy that complies with s51 RTA, and the Tribunal is satisfied that in giving the notice, the landlord was motivated wholly or partly by the tenant exercising a right or remedy under the tenancy agreement or any Act, or by any complaint against the landlord, then the notice must be declared to be retaliatory. See section 54(1) RTA.
In addition, a landlord must not give (or purport to give) a tenant a notice to terminate the tenancy or apply (or purport to apply) to the Tribunal for such an order, knowing they are not entitled to do so under the RTA; s60AA RTA.
Breaching s54 or s60AA is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See sections 54(2) and (3), and 60AA and Schedule 1A RTA.
What happened in this case is that the landlord convinced itself that renting out the premises under successive 90-day fixed terms with one day in between them complied with s7 RTA and it could then decide to finish the tenancy on the end date of one of those terms.
They saw it as a legitimate and lawful way for the tenancy to end.
They were mistaken. They could not decide to end the tenancy then.
However, s60AA RTA only applies where a landlord has taken steps to terminate a tenancy knowing they are not entitled to do so.
And s54 RTA only applies when a notice complies with all the s51 rules. The landlord’s 7 May 2024 email doesn’t comply with the s51 rules.
The landlord was wrong in its understanding of the law, and its email telling the tenant the tenancy was ending on 30 May 2024 was invalid, but it did not make this error knowingly. It genuinely thought it could end the tenancy this way.
The landlord has not breached either s54 or s60AA RTA. This means that exemplary damages do not apply.
However, the landlord acted wrongly and invalidly in purporting to end the tenancy on 30 May 2024.
The consequences of this on the tenant have been significant. She was told, with only 3 weeks’ notice, that the landlord considered her tenancy to be ending and on the same day as the first hearing of these proceedings. This threw her into a rush of packing, applying for transitional and emergency housing, looking for another tenancy, moving items into storage, and thorough cleaning, in case her tenancy did end on that first hearing day. I well believe her when she said she’d had sleepless nights and was emotionally and physically exhausted.
The Tribunal may award general damages to recognise this type of loss. I award $500.00. Can the unit be lawfully lived in by the tenant in the way that it has been? If not, has the landlord contributed to or caused this situation and should rent be refunded or exemplary damages be awarded? (s78A RTA).
When the tenant made her application to the Tribunal, she did not know that the lawfulness of her tenancy might be an issue.
Parliament added section 78A RTA to the law in late 2019 giving the Tribunal the power to refund rent, make work orders and award exemplary damages where premises are unlawful.
Premises are unlawful when something in the law prevents them being lived in by a tenant in the way that they have been. 5
The section only applies when a landlord has contributed to or caused the unlawful occupation 6 by failing to check the occupation was lawful (when they 5 Section 78A(2) 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) ... as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation. 6 Section 78A(2)(b) RTA; see footnote above. reasonably should have done so) 7 , or failed to comply with all requirements of building, health and safety laws. 8
The landlord said at the first hearing that the reason for the repeated renewal of the fixed terms of this tenancy was that council consents meant the unit could not be rented out for longer than 90 days at a time. This is also stated in the 90-day clause in the tenancy agreements.
I decided that the regulatory consents for the property should be investigated further; s78A(1) RTA.
The result of this was that written and oral evidence was provided from Hamilton City Council at the later hearings, that:- a. The complex of twelve studio units at 34 Beatty Street were built and approved for “Visitor Accommodation” pursuant to a land use resource consent in September 2016 issued by Hamilton City Council under the Resource Management Act 1991 (“the consent”) 9 ; b. That “visitor accommodation” was defined in the Hamilton City District Plan 2012 as: any land or buildings used for day-to-day accommodation of visitors on a temporary basis (up to three months’ continuous occupation during any 12 month period). It includes motels, hotels, holiday or tourist flats, backpacker accommodation, motor or tourist lodges. It excludes camping grounds and motor camps. c. A resource consent was required because, at the time the consent as granted, visitor accommodation was not a permitted activity in the ‘General Residential’ zone that applied to this address at the time. d. The evidence from the council says that “... visitor accommodation activities are not subject to the same rules and standards required for residential activities such as private, useable outdoor living areas and adequate service areas”. 10 e. The resource consent included these conditions:- Occupancy 3. Evidence shall be provided to the manager, planning guidance showing that no person has resided on site for more than 3 months continuous duration in any 12 month period upon request (excluding the onsite manager). 11 7 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 36 RTA. 8 The landlord shall .....comply with all requirements of buildings, health, and safety under any enactment so far as they apply to the premises; section 45(1)(c) RTA. 9 Land Use Resource Consent 010.2016.8851.001 10 Email from General Counsel, Hamilton City Council to the property management company, 27 September 2024. 11 The words in brackets were added after the council agreed to amend conditon 3; See Land Use Resource Consent 010.2016.8851.002
The number of occupants shall be limited to 12 guests at any one time.
The landlord’s interpretation is that its practice of consecutive 90-day tenancies with one day in between does not breach the resource consent. The one-day between fixed terms means the tenant has not resided continuously.
It argues that the period in between could be as short as one day because no other period is specified in the condition and contrasted this with another property also consented to be used as visitor accommodation. That resource consent said: The maximum length of time any party may reside on the site over a continuous period shall be 3 months. The minimum period of time between stays for an occupant shall be two weeks to ensure that the visitor accommodation remains as short term accommodation.
The council does not agree. It has confirmed in writing:- 12 a. That the tenant’s occupancy of the unit is not an activity that is in accordance with the resource consent because the tenant is “not a visitor being provided temporary accommodation but is instead being provided residential living accommodation”. b. “ ...condition 3 [is] intended to provide clarity about the maximum duration a visitor can be provided accommodation on the site, and assist with monitoring of the activity.”
The council is the statutory body tasked with monitoring compliance with resource consents. I accept its determination that the tenant’s occupancy is not in accordance with the resource consent.
Not every breach of a resource consent may result in it being unlawful to occupy premises.
In this case though, the non-compliance has changed the activity that was consented to. The consented activity is visitor accommodation, and the non- compliance has resulted in ongoing residential accommodation.
The evidence from the council was not specific as to why residential accommodation is not consented apart from saying that visitor accommodation does not require the same sort of facilities as residential activities including rules for outdoor living and service areas.
I note that the 2012 District Plan rules for the general residential zone in which the premises are situated, include that, if a residential apartment building had 12 By General Counsel, for Hamilton City Council. been consented 13 , that there be 150m 2 of land area per residential unit 14 and outdoor living areas of at least 12m 2 per unit. 15
The resource consent records the land area of the complex of 12 units as 690m 2 . In other words, this complex may have only been approved 4 units for residential apartment living (150m 2 of land for every unit).
[The tenant/s] unit has no outdoor living area (exclusive or shared).
I also note that the size of each unit is shown on the resource consent plans as being 20.5m 2 and they are studio units. I have not investigated the further rules for residential living or apartment buildings and there is no evidence as to whether a studio unit of this size would have been consented for residential living in this zone.
Regardless, as [The tenant/s] is not a visitor being provided temporary accommodation and the unit is not consented or permitted in the residential zone as a residential unit, the premises cannot lawfully be occupied for the particular purpose they have been, as ongoing residential accommodation; 78A(2)(a) RTA.
The second part of s78A RTA is that the landlord must have been responsible for the unlawful occupation by either failing to take reasonable steps to check there was no legal impediment to the occupation (s36 RTA), or by failing to comply with any building or health and safety enactment (s45(1)(c) RTA).
I am satisfied that the landlords (owners and agents) are responsible for the unlawful occupation and have breached both s36 and s45(1)(c) RTA.
An owner of a unit has a responsibility under the UTA to comply with all laws relating to the use, occupation, and enjoyment of the unit; s80(1)(d) UTA.
The landlord’s agent is in the business of managing property so can be expected to ask the owner of the property for all relevant information about the lawful use of the unit.
In this case, the agent not only could be expected to know but had actual knowledge that the units in the complex could only be used for visitor accommodation.
This is because it had engaged with the enforcement team from the council in 2021 regarding a complaint the council had received that this complex of units was not being used for visitor accommodation but instead as residential apartments. 13 Which would also have required a resource consent as it was not a permitted activity but a discretionary activity. 14 Rule 4.1.2(a) Hamilton City Operative District Plan 2012. 15 Rule 4.1.2(h) Hamilton City Operative District Plan 2012.
Emails reveal that the council made it clear to the landlord at that time that the use of the premises for ongoing residential accommodation was a breach of the resource consent and that only one visitor may occupy each unit at a time.
The limit of one occupant per unit is another one of the resource consent conditions because the maximum occupancy for visitor accommodation is 12 guests. 16
The property manager assured the council officer that she would ensure that the units were returned to visitor accommodation right away. The council then closed the complaint.
The council also told the landlord that the only way to allow ongoing residential accommodation was for all owners of the units to apply to the council for a formal change to the resource consent.
The landlord knew that ongoing occupation of the units, for periods of more than 3 months within a 12-month period, did not comply with the resource consent. Despite this:- a. The landlord did not take reasonable steps to check with the council that its new process of granting tenants more than one 90-day fixed term tenancy, with one day in-between the term dates, would comply with the resource consent. This breaches s36 RTA. b. The landlord has failed to comply with the resource consent by agreeing to the tenant’s ongoing occupation of the unit. This breaches section 9(3) and s338 Resource Management Act 1991 and so is a breach of s45(1)(c) RTA. c. The use of the unit as a residential dwelling also breaches regulation 5(3) Housing Improvement Regulations 1947 which require a kitchen (or kitchenette) to be in a separate room from any bedroom/living area.
There is no evidence or suggestion that steps have been taken by the landlord to apply to council for a change to the resource consent.
The tenancy premises are unlawful residential premises because they may only be occupied by a single occupant who is a visitor being provided temporary accommodation of up to three months’ continuous occupation during any 12- month period and the landlord has caused or contributed to that unlawful occupation; s78A RTA.
I have made a declaration that the premises are unlawful residential premises.
I have addressed all other remedies at the end of this decision. 16 Except if located in the special Visitor Facilities Area which is an area of motels (and similar) located at Ulster Street, Hamilton; Rule 4.1.3 Hamilton City Operative District Plan 2012. Has the landlord breached its maintenance and quiet enjoyment obligations to the tenant? (s38 and s45(1)(b) RTA)
I deal with the maintenance and quiet enjoyment claims together because the issues and remedies are related.
[The tenant/s] has raised several issues with her landlord and the body corporate since early January 2024. The detail of these is contained in many emails and summarised in two formal notices of remedy [The tenant/s] sent to her landlord (dated 16 February 2024 and 29 February 2024) and which were filed with her application to the Tribunal. 17
In summary, she says there are ongoing rubbish, carparking, security and noise issues at the complex. Her application seeks $2,000.00 in compensation for inconvenience, stress and expenses (fly spray, batteries for door locks, making signs to put up in the complex).
I have not referred in detail to all the issues raised however the parties can be assured that I have considered all the written and oral evidence.
Section 38 RTA promises a tenant “quiet enjoyment” of the premises that they rent and says: “a landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant”.
Section 45(1)(b) RTA says: “The landlord shall provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”.
In both sections, the word “premises” includes “facilities”; s38(4) and s45(5) RTA.
This is important because “facilities” is defined as including “all facilities provided by the landlord for the non-exclusive use and enjoyment of the tenant” such as storage and carparking areas, laundry, cooking, lifts and stairways, rubbish storage and disposal facilities, shared toilets and bathrooms, heating and air-conditioning, 17 The maintenance issues include ongoing smell, flies and maggots from rubbish, rubbish overflowing onto the common area; security problems as the front door to the complex does not automatically close and lock; carpark lights not working properly; letterboxes broken and overflowing; gardening and exterior building cleaning not being done. Noise and disturbance issues include carparking problems with other occupants/visitors/Airbnb cleaners parking in “no parking” common areas thereby blocking the main driveway and access to rubbish and lockboxes, and in unit carparks allocated to others; the slamming of heavy doors; late night music and talking/yelling noise from other units and in particular, short-term Airbnb guests and cleaners; Airbnb and other occupants and cleaners responding rudely and aggressively to the tenant’s requests; and ongoing noise from the bathroom fan from unit 6. communication facilities, recreational areas, lawns, gardens, and outhouses; see the definition in s2 RTA.
As well as the rules in a tenancy agreement and in the RTA, every unit title development must have body corporate operational rules which help the body corporate manage the units and prevent disputes between people who live there.
Body corporate operational rules are taken to be terms of the tenancy agreement (and a copy of these must be included with every tenancy agreement); s16B RTA.
The operational rules for this body corporate development are:
An owner or occupier of a unit must not – (a) Damage or deface the common property; (b) Leave rubbish or recycling material on the common property; (c) Create noise likely to interfere with the use or enjoyment of the unit title development by other owners or occupiers; (d) Park on the common property unless the body corporate has designated it for car parking, or the body corporate consents; (e) Interfere with the reasonable use or enjoyment of the common property by other owners or occupiers.
An owner or occupier of a unit must dispose of rubbish hygienically and tidily.
These rules are directly relevant to the issues raised by [The tenant/s].
[The tenant/s] has spent time and effort communicating with her landlord and the body corporate and dealt with many of the day-to-day issues herself (including cleaning rotting food from the communal laundry bins and treating the flies and maggots, picking up overflowing rubbish, and replacing batteries in the automated shared entry doors).
The evidence shows that her landlord was active in referring her complaints to the body corporate and following these up but said it could do no more than this. The body corporate manager took some practical steps (such as notifying unit owners the occupants of their unit were not parking correctly) but said that to increase services such as rubbish collection or pest control it had to wait for the owners of the 12 units to have their annual general meeting and approve any action.
[The tenant/s] view is that neither her landlord nor the body corporate has taken responsibility for resolving the issues.
My decisions on the specific issues are below.
Rubbish issues in the common areas: My assessment is that the landlord failed to reasonably maintain the rubbish storage and disposal facilities. Emails and photographs prove that the tenant repeatedly raised the issue, that at its worst it negatively affected her quality of life for about 11 weeks in the summer of 2024 18 , and that cleaning and additional rubbish collections were not actioned until [The tenant/s] had involved the council environmental health team. The tenant spent her own time, money, and effort on controlling flies, maggots, smell and developing a rubbish management system for the complex. 19 As the body corporate did not act within a reasonable time, I suggest that the landlord should have notified the body corporate managers that it would arrange urgent cleaning and pest control and pass this cost on to the body corporate.
Other maintenance issues (carparking, lights, security etc): The evidence is not sufficient to prove these issues occurred or were not dealt with in a reasonable timeframe. That said, I accept the tenant’s description of events.
Carparking: [The tenant/s] did not provide evidence to prove these claims in the sense that there were no photographs to show people parked incorrectly against the body corporate rules. However, again I accept her version of events that this did occur sometimes.
Noise in common areas and from other units: as with the above, there was no direct evidence (such as audio or video recordings) and no direct evidence from any other occupants. I accept the tenant has felt disturbed by noise (door slamming, cleaners and Airbnb guests yelling) but without more evidence I cannot say her quiet enjoyment has been breached. The landlord could contact the owner of unit 6 about the bathroom fan (eg a timer could be installed to turn this off after a set period of time) and contact other owners if the occupants of their units are disruptive.
Breach of the tenant’s quiet enjoyment: Quiet enjoyment is the right to live undisturbed and as you choose to live (within the bounds of your obligations to others). The tenant says she could not do this because there was no effective way to raise complaints or concerns about other units or the common areas. Her landlord told her it could only refer issues on to the body corporate – and the body corporate said it had to wait for an AGM of the owners (even to have day to day issues like rubbish, parking and minor maintenance attended to).
The landlord’s view is that it has no power or authority to maintain common areas or interact with other unit occupants or owners in a unit title complex and must rely on the body corporate to do so.
This is not correct:- a. The landlord has responsibilities to the tenant not only for the unit they are renting but also for the common facilities (common property) because of 18 [The tenant/s] unit is directly above the laundry and near the communal rubbish area. She describes large numbers of flies and bad smells. 19 Signage including to encourage a system of using one bin at a time, then moving on to the next bin once the first was full. And so on. s45(5) RTA. It cannot simply say “this is for the body corporate to deal with”. 20 b. The Unit Titles Act 2010 stipulates that unit owners, as well as the body corporate, have the right to enforce the operational rules; s79(g) UTA. c. In this case, the owners of the unit live overseas. Their agent is not only responsible under the RTA (s16A RTA) but also has the power to enforce the body corporate operational rules; s81(3) UTA. d. The landlord could have directly approached the other owners and unit occupiers. In fact, the agent manages several of the other units.
I am satisfied that the landlord has caused or permitted a breach of the tenant’s right to quiet enjoyment of her tenancy by failing to take effective actions to address the maintenance and noise issues. This is a breach of s38 RTA.
The landlord could have met with the body corporate managers, contacted owners of other units, sent its own notices regarding the body corporate rules, and enforced the body corporate rules in the Tenancy Tribunal.
The tenant wants the Tribunal to make orders requiring the landlord or the body corporate to fix the issues.
The body corporate is responsible for the repair and maintenance of the common areas and for administration; s138 UTA. It must keep a solvent operating account (s115 UTA) and developments of 10 or more units should have a committee in place to make operational decisions (s112 UTA).
I cannot make orders requiring the body corporate to do anything because the body corporate is not a party to these proceedings.
I have not made work orders requiring the landlord to do anything because the specific issues have either been addressed (rubbish) or are better dealt with by the landlord and body corporate working together (noise, door security, carparking etc).
I suggest the landlord and body corporate meet to review maintenance and quiet enjoyment issues at the complex and develop plans and processes to address these. For example, setting up a body corporate committee with an operational budget and authority to remedy day-to-day and urgent issues on short notice and putting in place regular cleaning and maintenance of common areas.
Any of the landlord, agent, or body corporate can apply to the Tribunal under the UTA to enforce the body corporate operational rules against unit owners, occupants, or the body corporate. 20 As the landlord did, in many emails to the tenant.
I consider compensation for the breach of maintenance and breach of quiet enjoyment at the end of this decision. Has the landlord breached the healthy homes ventilation standard because the rangehood is not externally ducted or does an exemption apply? (s45(1)(bb) RTA)
[The tenant/s] claims that the landlord has breached the landlord’s obligation under section 45(1)(bb) RTA to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) for ventilation.
She says the rangehood extractor fan in the kitchenette does not vent the extracted air to the outdoors. She says it pushes the air into the cabinet above the rangehood and the force of this blows the cabinet doors open thereby blowing the air onto the food that is being cooked.
The HHS requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity and that these vent to the outdoors. 21
The HHS does provide exemptions in specific circumstances: regulation 24 says: 24 Exemption from mechanical ventilation standard if extractor fan not reasonably practicable to install (1) A kitchen or bathroom need not comply with regulation 23 if all of the following apply: (a) at the commencement of the tenancy,— (i) the room does not have an extractor fan or qualifying ventilation: (ii) it is not reasonably practicable to install an extractor fan so as to comply with the requirements of regulation 23(2) and (3): (b) when the room was built or converted into a kitchen or bathroom, not having an extractor fan was lawful: (c) if not having an extractor fan was lawful only because the room met alternative ventilation requirements, at the commencement of the tenancy the room still meets those requirements. (2) This exemption ceases to apply if, during the term of the tenancy, it becomes reasonably practicable to install an extractor fan so as to comply with the requirements of regulation 23(2) and (3).
The landlord accepts that the rangehood does not duct to the outdoors. The representative explained that it is a recirculating fan that takes air into the unit through a filter and then pushes the filtered air back out into the cabinet above the rangehood. 21 The definition of “extractor fan” is “an extractor fan that vents extracted air to the outdoors”; see regulation 3 of the Residential Tenancies (Healthy Homes Standards) 2019.
The ventilation section of the healthy homes statement in the tenancy agreements state that the kitchen extractor fan was installed prior to 2019 and is: Not ducted to exterior – not possible (exempt)
The landlord says that it is not reasonably practicable to install an externally ducted kitchen extractor fan and therefore the exemption applies.
It says that it investigated having this done in 2021 at the same time as a heatpump was installed into the unit to comply with the HHS. The landlord provided an email sent to it at that time from the office of an electrical company which says: When we got access into the ceiling on Wednesday we found that all the ceiling has fire rated fittings to comply with the fire standard. After talking with a Fire Technician and discussing the job we were advised that this can not be done by us and would need to go back to a Fire engineer to design and then be approved to comply with the fire building regulations. Unfortunately we are not licenced to do this so we could not carry out the works.
The tenant questions this. She provided evidence that:- a. Another unit in the complex has had external ducting added to the rangehood; b. The bathroom fan in her unit is ducted externally and the exterior grill is located in the soffit so appears to be ducted through the ceiling; c. The distance between the bathroom fan and the rangehood is only about
5 metres so she doesn’t see why the rangehood can’t be ducted outside; d. A quote that she has obtained for $477.25 from the same electrical company that installed the external ducting to the other unit in the complex.
In this case I have determined that the landlord’s reliance on the email advice from 2021 is not sufficient to show that it is not reasonably practicable to duct the rangehood to the outside. My reasons for this are:- a. The exemption in regulation 24 has several criteria all of which must be met. The landlord has not supplied evidence that the current recirculating rangehood was lawful at the time it was installed, such as the code of compliance for the unit if it was installed when first built, or the electrical compliance certificate; reg 24(1)(b) HHS Regulations; and b. The exemption ceases to apply if, during the term of the tenancy, it becomes reasonably practicable to do so; reg 24(2) HHS Regulations. The tenant has provided an example of the rangehood in another unit being ducted outside and a quote from the same electrician who did so. Once the tenant gave that information to the landlord, I consider that the landlord should have further investigated whether the work could be done without breaching fire regulations or significant expense. As far as I am aware, the landlord has not done so. It might be that the investigation would have resulted in the same outcome, but it is reasonable to expect the landlord to obtain a second opinion.
The landlord has breached s45(1)(bb) RTA which is an unlawful act.
If the landlord intends to rent out the premises for 90-day tenancies, it must comply with the HHS. It should provide evidence that it has obtained a second expert opinion as to whether the rangehood can be ducted externally.
I award compensation of $250.00 in recognition of some detriment.
I do not award exemplary damages as am satisfied the landlord genuinely thought that it was not reasonably practicable to duct the rangehood externally, so the breach was not intentional.

Did the landlord provide the healthy homes information requested by the tenant?

(s45(1AC) RTA).

[The tenant/s] says that the landlord has not supplied the records or other documents required to show that an exemption applies from the external ducting requirement of the ventilation standard. In her view, it is not sufficient that the only information the landlord sent her is the wording from the 2021 email sent to them by the electrical company that investigated the ducting. She says she was told by the property manager that there was a signed exemption from a healthy homes standards inspector done as part of a HHS compliance report but has not been provided this.
The legal requirement is that a landlord must provide healthy homes standards compliance information within 21 days of receiving a request from a tenant and to fail to do so without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AC), (1AD) and Schedule 1A Residential Tenancies Act 1986.
The question is what sort of information a landlord must provide and how far they must go to obtain it.
The place to start is s123A(1)(e) RTA which says a landlord must retain during, and for 12 months after a tenancy ends, “sufficient relevant records or documents” as reasonably provide evidence of the landlord’s compliance with the healthy homes standards in relation to the tenancy.
The definition of relevant records or documents is found in regulation 40 Residential Tenancies (Healthy Homes Standards) Regulations 2019 and means: (a) reports or other records of inspections of the premises, tenancy building, or installed or provided things (whether the inspections were done during or before the commencement of the tenancy), including photographs or video recordings: (b) records of any installation, maintenance or repair, or other work carried out at the premises or tenancy building (whether the work was done during or before the commencement of the tenancy): (c) records of calculations of a living room’s required heating capacity (for example, results from a heating capacity calculator (as defined in regulation 10)): (d) product manuals or other manufacturer’s information relating to installed or provided things: (e) certificates or other documents issued under or for the purposes of an enactment or a bylaw (for example, a code compliance certificate or building warrant of fitness under the Building Act 2004): (f) reports or other documents issued by a local authority (as defined in section 5(1) of the Local Government Act 2002) in relation to the premises or tenancy building (for example, a land information memorandum (LIM) report): (g) documents or records relating to the construction of, or work carried out at, the premises or tenancy building.
The landlord has not provided a healthy homes inspection report in evidence or referred to one. There is no requirement to have an inspection done or to provide any sort of certificate to prove that an exemption applies. Regulation 40 HHS Regulations says a landlord does not have to go out to seek or create a document that it does not otherwise hold.
However, I do consider that the landlord had an obligation to go further than simply quote the wording from the 2021 email to the tenant, particularly as it did not explain where this advice was from or what, if anything, had been done to verify or check whether it was correct.
It should also have supplied the code of compliance certificate or other documentation to show that the existing rangehood complied with the Building Code at the time it was installed, as this is part of the regulation 24 criteria.
Also, as I have decided above, the landlord should have done more to investigate whether external ducting could be installed.
The landlord did intentionally breach this requirement as it should know that it is required to provide all the information required to prove an exemption to the HHS. It is not enough to rely on or provide an unreferenced email. I award exemplary damages of $250.00. Has the landlord provided signed tenancy agreements before the tenancy commenced? (section 13 RTA)
[The tenant/s] says the landlord did not provide her a signed copy of all seven tenancy agreements before each term commenced.
This is a legal requirement in section 13 RTA and a breach is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A RTA.
The landlord did not provide a signed tenancy agreement in evidence for every one of the seven terms. The second term (28/11/2022 to 26/02/2023) and fifth term (31/08/2023 to 29/11/2023) agreements are not signed.
It is more probable than not that it did not provide a signed copy of all seven tenancy agreements to the tenant before each term commenced.
This is a breach, but I have not awarded compensation as there is no obvious detriment or consequence to the tenant. She had been given the first tenancy agreement and probably most of the others so could refer to these or email the landlord with any specific question.
I do award modest exemplary damages of $150.00 as a landlord should know and comply with its obligations.
It also diminishes the landlord’s argument that it considered every fixed term to be a new and separate tenancy if it cannot show that every agreement was signed and provided to the tenant.

Did the landlord give the tenant notice that the premises were on the market for sale?

(s47 RTA).

A landlord must give a tenant notice that tenancy premises are on the market for sale; s47 RTA.
The landlord notified the tenant of this by email on 29 September 2022 so has complied with its obligations. This claim is dismissed. Remedies Compensation
In my view, there is a common cause to nearly all the issues raised by the tenant in these proceedings.
That is, that the landlord decided to rent out the unit for use in a way that it was not lawfully consented for.
The units are intended for short-term, visitor accommodation of no more than 12 people at one time.
Instead, they have been rented out to a mix of long-term residents and short- term guests.
These types of occupation are incompatible in some ways. Short-term guests don’t have ongoing relationships with their neighbours so they may be noisier. Commercial cleaners and other service contractors may come and go more frequently and disturb residents. Long-term users of laundry and rubbish facilities notice if these are not adequate.
In other words, the detriment to the tenant from the maintenance and quiet enjoyment issues she raised is mostly a result of the type of use which was unlawful. And this was directly brought about by the landlord.
This is why it make sense to consider the compensation for the issues all at once.
My decision that the premises are unlawful residential premises means it is appropriate to consider compensation as a refund of rent. The Tribunal has a broad discretion to consider the special circumstances of the case, the nature of the premises and what would be fair; s78A(4)(a) RTA.
The factors I have taken into account are:- a. That the landlord structured the tenancy to try to get around the rules in the resource consent. b. That it should have taken steps to check its interpretation of the resource consent rules because of the previous complaint to the council in 2021 and because the agent is a professional property management company. c. The tenant has been inconvenienced by the problems with rubbish, noise and parking caused partly by being granted long-term accommodation in a complex that was never intended to house permanent residents alongside visitors. Those two uses are not compatible in such close proximity. d. The tenant has benefitted from the tenancy and chosen to continue living here. From the evidence available, she is largely content with the facilities of her unit. e. The unit is small (it is a studio with no separate bedroom), with a small kitchenette, and there is no outdoor space (such as a balcony or common outdoor area). However, there is insufficient evidence to allow me to assess how these facilities compare with what would be required for permanent residential accommodation. f. The tenant has paid $310.00 per week for rent (including water, power, internet) up to 2 March 2024 when this increased to $320.00 per week. g. The landlord has benefited in receiving rent and being able to consistently rent out accommodation that is not lawfully able to be rented out in a long- term way. h. The landlord has received approximately $250.00 per week in rent after paying for water, power, internet.
The tenancy so far is 127 weeks in duration. My assessment is that a rent refund of $30.00 per week is fair taking the above factors into account. This is $3,810.00. Declarations, work orders, exemplary damages
The Tribunal may make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.
I have made a declaration that the landlord may terminate the tenancy by giving the tenant no less than 90 days’ written notice to terminate the tenancy. This will give clarity to both parties as this tenancy must end so that the landlord is no longer in breach of the resource consent.
The tenant may terminate the tenancy by giving not less than 2 days’ notice to the landlord; s56A(1) RTA.
The Tribunal may also award exemplary damages where satisfied a landlord has intentionally failed to comply with s45(1)(c); see s78A(5) RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I have decided to award exemplary damages. The landlord intentionally breached the resource consent. It knew or should have known that continuing [The tenant/s] occupation past the first 90-day term was not allowed because it had already dealt with the council after the 2021 complaint.
The factors to be considered are largely covered by my considerations of compensation (above). The landlord’s intent was to allow ongoing occupation when this was not allowed, the effect on the tenant has been detriment caused by residential and visitor uses in the same complex, her interests are that the situation should never have arisen. I make this award largely to recognise the public interest and public policy rationale in signalling to landlords that they cannot ignore or manipulate the terms of a resource consent. I award $1,800.00. Filing fee and suppression
The tenant has been substantially successful so is awarded the filing fee and her name is suppressed from the published order, as sought.

Tenancy Tribunal case 4821502 — Exemplary damages at Unit/Flat 7, 34 Beatty Street, Melville, Hamilton 3206

At a glance

Tenancy Tribunal case 4821502 — Exemplary damages at Unit/Flat 7, 34 Beatty Street, Melville, Hamilton 3206

At a glance

Award balance

Claims & awards

Order

Reasons

What are the issues?

Does section 7 RTA apply to this tenancy?

What type of tenancy is this?

Did the landlord provide the healthy homes information requested by the tenant?

Did the landlord give the tenant notice that the premises were on the market for sale?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

What are the issues?

Does section 7 RTA apply to this tenancy?

What type of tenancy is this?

Did the landlord provide the healthy homes information requested by the tenant?

Did the landlord give the tenant notice that the premises were on the market for sale?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions