What was Tenancy Tribunal case 4829038 about?

The tribunal order states: Colin Ladley, Pam Ladley are to pay [The tenant/s] $1,325.44 immediately being

How much money was awarded in case 4829038?

Filing Fee: $20.44 awarded to tenant; Immediately Being: $1,005.00 awarded to tenant; Return Of Rent Paid: $300.00 awarded to tenant

What type of tenancy dispute was case 4829038?

The dispute type was not classified.

Where can I read the official tribunal order for case 4829038?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10779388-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4829038 about?

The tribunal order states: Colin Ladley, Pam Ladley are to pay [The tenant/s] $1,325.44 immediately being

How much money was awarded in case 4829038?

Filing Fee: $20.44 awarded to tenant; Immediately Being: $1,005.00 awarded to tenant; Return Of Rent Paid: $300.00 awarded to tenant

What type of tenancy dispute was case 4829038?

The dispute type was not classified.

Where can I read the official tribunal order for case 4829038?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10779388-Tribunal_Order_Redacted.pdf.

292 Eighty Eight Valley Road, Eighty Eight Valley, RD 1, Tenancy Tribunal Case 4829038 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4829038 — net $1,325.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
immediately being	$1,005.00	immediately being
return of rent paid	$300.00	return of rent paid
interference with quiet enjoyment, and the application filing fee of	$20.44	interference with quiet enjoyment, and the application filing fee of
Net award	$1,325.44
Total payable by Landlord to Tenant	$1,325.44

Both parties attended the hearing.

The tenant applied for $13,735 compensation, being the full rent paid.

The tenant also claimed exemplary damages under quiet enjoyment. A further claim under this section pertain to the delivery of mail.

A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

Was the premises unlawful?

The premises were a modified horse truck. Previously it had been used by the owner as short-term accommodation. It is one of a number of such premises within the working farm of the owner. Its change in use to long-term residential tenancies was, at least in part, driven by decline in the short-term tourist accommodation market.

The tenancy commenced 16 February 2023 and ended 26 November 2023.

The tenant alerted the Tasman District Council to her concerns regarding the consenting of the premises.

The applicant called a witness, a neighbouring tenant and also had her partner present to give evidence.

An email from 14 December 2023 from Mr Shawn Waters, a Compliance and Investigations officer with the TDC, was provided by the tenant.

In that email he recounts an on-site discussion the owner. He confirmed that the tiny house is not consented and has no building consent for the structure and any wastewater discharges. The waste discharge was not found to be in breach of district rules. The grey water was assessed as needing code of approval under the building consent, and a possible resource consent.

The email concludes with the advice from the owner that the building was now not be being used as a permanent dwelling for living in and is being used as overflow for family only.

It was not disputed by the landlord that the premises lacked full consent. Given the modification of the truck, the landlord argued as it was on a wheeled trailers it could be considered a vehicle, and therefore not regulated by the Building Act, or require building consent. However, the Ministry of Business, Innovation and Employment (MBIE) has previously ruled that a structure with some characteristics of a vehicle could also legally be considered a building in some circumstances.

The landlord provided further evidence as allowed for at the hearing. It was a further series of emails between the landlord and the TDC (a different group than the earlier tenant interactions). On the basis of these, the landlord disputes the tiny home is an illegal dwelling. It includes a statement by the landlord it has been defined by the TDC Compliance Team as a vehicle. This was based on a visit onsite on 15 July 2024, after the hearing and confirmed by an email from TDC.

The tenant was afforded the opportunity to respond to the landlord evidence and this was tabled, being further clarification from her previous TDC advisor. His response confirmed the TDC assessment that it was considered a vehicle under the Building Act. The remaining issue was the lack of a resource consent for its use. The writer states that continuous use of more than two months, as is the case here, would see it considered a building. He further wrote, “ The next thing to consider is whether the building can be considered a dwelling”, and confirmed the owner has expressed an intention to apply for consent to “legitimise the use of this vehicle as a dwelling under the TRMP and Council will allow time for this process to happen.”

In this instance, I believe that the primary function of the premises during the tenancy was a building. The premises lacked resource consent (it is being sought now) and could not lawfully be occupied for residential purposes.

In maintaining this stance, I have also considered the definition of a premises and facilities under the RTA.

The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.

In Tenant v Krankenberg & Anor [2021] 4298196, 4294929 the Tribunal summarised the factors relevant to awarding compensation under s 78A(4) as follows: a.The landlord’s motivation for renting the property, and their conduct during the tenancy. b.The tenant’s motivation for renting the property and bringing the claim, and the length of and time she lived in the property. c.The benefits the landlord received in renting the property. d.The benefits the tenant received in renting the property. e.The seriousness of the regulatory breaches making the premises unlawful. f.Any other breaches by the landlord. g.Any detriment or loss the tenant suffered. h.The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. i.The public interest in discouraging unlawful tenancies. j.Any other compensation or exemplary damages that are ordered.

I consider these each worth consideration in turn as a means of assessing the impact of the unlawful premises on the tenant. The landlord’s motivation for renting the property, and their conduct during the tenancy.

As mentioned before, the property had a prior history as part of a busy and popular short-term tourist accommodation offering. This operated from 2000 as a business operating as Dun Puffin Railway Carriages. These premises was added in 2016, adapted from a horse truck.

The landlord explained how the decline in that sector prompted a move into the longer-term residential tenancy sector.

Both sectors offer a similar facility in so much as they are self-contained premises intended for overnight stays. The differences when transitioning to the longer- term residential tenancy sector can mean greater demand from both compliance and statutory performance. The tenant’s motivation for renting the property and bringing the claim, and the length of and time she lived in the property.

The tenant wanted a smaller and cheaper property from the premises occupied prior to this. The premises was advertised on Facebook Marketplace and she was attracted to the great location, value and the fact she could have her own garden.

The commencement phase was amicable. The tenant was offered early access for storage of her goods stop just permission to deep clean and repaint the premises. This was granted and one free week of rent provided as compensation. The benefits the landlord received in renting the property.

The main benefit the landlord received in this tenancy was financial. The rent was $335 per week.

The efforts of the tenants in improving the premises will have left some positive legacy. This has already been compensated in part but features such as the replacement splashback appear as improvements. The benefits the tenant received in renting the property.

As mentioned above, the location of the premises has a rural aspect and was attractive to the tenant at first inspection. The large area surrounding the premises afforded the tenant and her partner the benefit of on-site storage and parking of their house truck that was under restoration and other sizable items. The seriousness of the regulatory breaches making the premises unlawful.

Beyond the email assessment from the TDC, there is no other compelling evidence regarding any unlawfulness of the premises. The benefit of the consenting process (both building and resource) is to ensure compliance but importantly health and safety. The owner’s brother is an electrician and apparently established the electrical connection. He provided a written statement expressing his confidence in the current set up. It would have been better expressed via a formal code of compliance certificate.

The claimed issues of shocks from the washing machine and the tripping of some lighting residual current devices during rain, and possible water leaks inside the premises are concerning. Any other breaches by the landlord.

The issue of quiet enjoyment is dealt with below. Beyond that there were no other significant breaches identified. I do not find any claims of unlawful entry to be proven to the required standard.

The lack of clear definition and boundary setting created confusion on both sides. The nature of longer-term residential tenancies are such that the impact of the occupancy may be more visible and for longer periods than under a short-term stay arrangement.

I have not made any specific orders for the landlord entry, maintenance activities around the premises, noise from farm bikes, nor disturbances from children, spotlights or dogs. I accept there were impacts on the tenant but I also factor in some “wins” to the tenant from the lack of landlord clarity, as well as the reality and positives of the premises rural location.

The tenant recounted being told by Pam Ladley, “you can do what you like down there”. This was most likely too broad an invitation. Any detriment or loss the tenant suffered.

The tenant claimed that she never received proof of any insulation. She claimed it was a cold, damp and mouldy environment during the winter. She claimed she had to leave the premises for three weeks after a significant rain event made her bedding and other items damp.

The premises had shared facilities including a laundry, and a shared communal area. It appears that area was mostly used for storage. Problems with the washing machine were cited by the tenant with a concern regarding wiring due to sounds it was making, and electric shocks to both her and her partner. No electric shock was ever experienced by the witness, nor by another tenant as stated in a written affidavit. The washing machine was removed for a period of time.

The lack of consenting is more than an administrative issue. Concerns of the tenant regarding safety around the electrical supply are not easily assuaged by the written credentials or summary of experience provided by the electrician (a brother of one of the landlords). It is the completion of the appropriate code of compliance or any building inspections that provide some comfort to an occupant that the premises are fit and safe for occupation. Even if one accepted it as a vehicle, that has it owns certification processes. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises.

This instance differs from others where the landlord temptation in providing an unlawful premises was motivated from the onset as a means of unfairly profiting through the provision of premises that are not habitable.

Here, the premises previously formed part of a wider accommodation offering. It was a due to external factors that saw the premises repurposed as a residential tenancy in 2020. This tenancy was not the first at this premises after the repurposing. The prior tenant was there close to one year and expressed her satisfaction in a written statement.

That said, it is reasonable to assume that the profitability of the tenancy was the prime motivation in the landlord providing the accommodation. The public interest in discouraging unlawful tenancies.

There is clear public interest in discouraging unlawful tenancies for obvious reasons.

In this instance one could also argue there is public interest in ensuring the housing stock in this country is effectively utilised given the ongoing shortage of supply. It is not lost on me that the landlord advised that he would cease to offer accommodation rather than seek appropriate consenting to provide future accommodation. That is his decision to make. Any other compensation or exemplary damages that are ordered.

Landlord interference with quiet enjoyment is assessed in the next section. Apart from that I do not find grounds established to make any further orders for compensation or exemplary damages.

Having considered the above factors, I have determined a return of rent equivalent to three weeks rent should be awarded under s 78A RTA. Quiet enjoyment

The tenant claims the landlord has harassed them.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s 38(2) Residential Tenancies Act 1986). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (see s 38(3) and Schedule 1A RTA).

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).

Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.

Both the tenant and the witness (neighbouring tenant) made strong submissions regarding the impact the behaviour of the landlord had on them at certain times. I consider it more than likely that at times the landlord behaved in a manner that was disconcerting or upsetting to the tenant or others.

The involvement of local police was recounted but having considered all submissions I do not find such involvement to be compelling evidence in favour of either parties respective complaints.

I do not consider there was a consistent pattern of adverse behaviour by the landlord but rather, at times, an escalation in stress with commensurate unfortunate amplification due to his perceived wrongs by the tenant or others. While unacceptable, I do consider there were other times where leeway to the tenant was granted by the landlord in terms of other activities or use of the premises and environs.

While the landlord has interfered the quiet enjoyment of the tenant, I do not consider the actions to be such that it forms harassment and should attract any exemplary damages. I do consider some small compensation should be ordered, particularly over the uninvited interactions during entry to the premises and the handling of the mail issue. The mail for all occupied premises on the property were delivered to one mailbox via rural delivery. The owner would typically redistribute the mail to everyone. The delivery of larger packages by the mail service created some friction. The owner was wrong to tell the tenant she should get a post office box. Provision of a collection point for correctly addressed mail is considered a requirement of any tenancy. A resource consenting process, if completed, may have addressed this, along with other macro issues at the property that caused friction.

I award $300.00 for landlord interference with the tenant’s quiet enjoyment. Other matters

The nature of the premises, shared facilities in the rural setting and proximity of the landlord meant a number of issues were raised by the tenant. I have not addressed those specifically in this order as the considerations of those form part of the determination and calculation regarding refund of rent under section 78A RTA. I note the positive written statement by the previous tenant regarding her tenancy and experiences. Merits and justice

When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.

It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.

A number of maintenance or other issues raised by the tenant do not appear to have been communicated to the landlord in a timely manner. What I do not totally discount her potential reluctance, I do consider such notice could have been safely delivered by her, or her partner. The communication, or lack of, has been factored into the determination. Compensation

It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.

Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.

Considering the proven tenant impacts as well as the overall merits and justice, I consider the two awards made in this order appropriate. Filing fee

Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Suppression

Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

The tenant requested suppression in their application. As they has been substantially successful, suppression is ordered.

Reasons

Claims and awards in Tenancy Tribunal application 4829038 — net $1,325.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
immediately being	$1,005.00	immediately being
return of rent paid	$300.00	return of rent paid
interference with quiet enjoyment, and the application filing fee of	$20.44	interference with quiet enjoyment, and the application filing fee of
Net award	$1,325.44
Total payable by Landlord to Tenant	$1,325.44