What was the outcome of Tenancy Tribunal case 4831438?

The tribunal order states: The Landlord shall pay the Tenant $2750.44 immediately.

How much money was awarded in case 4831438?

Property Damage: $500.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Compensation: Refund Of Bond: $230.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4831438?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4831438?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10534868-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4831438?

The tribunal order states: The Landlord shall pay the Tenant $2750.44 immediately.

How much money was awarded in case 4831438?

Property Damage: $500.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Compensation: Refund Of Bond: $230.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4831438?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4831438?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10534868-Tenancy_Tribunal_Order.pdf.

3 Lisa Rise, Half Moon Bay, Auckland 2012 Tenancy Tribunal Case 4831438 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4831438 — net $2,750.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Exemplary damages failure to lodge bond	$500.00	Exemplary damages failure to lodge bond
Compensation: Exemplary damages failure to provide cooking facilities	$2,000.00	Exemplary damages failure to provide cooking facilities
Compensation: Refund of bond	$230.00	Refund of bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,750.44
Total payable by Landlord to Tenant	$2,750.44

Claims and awards in Tenancy Tribunal application 4831438 — net $2,750.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Exemplary damages failure to lodge bond	$500.00	Exemplary damages failure to lodge bond
Compensation: Exemplary damages failure to provide cooking facilities	$2,000.00	Exemplary damages failure to provide cooking facilities
Compensation: Refund of bond	$230.00	Refund of bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,750.44
Total payable by Landlord to Tenant	$2,750.44

Order

The Landlord shall pay the Tenant $2750.44 immediately.

Reasons

Both parties attended the hearing.
The Tenant has applied for refund of the bond, breach of Healthy Homes Standards, exemplary damages and reimbursement of the filing fee.
During the hearing, the Tenant withdrew their claims for exemplary damages regarding the Landlord’s monitoring the Tenants movements and failure to provide a working house alarm and off street parking. Background
The Landlord rented out a self-contained room to the Tenant from 2019 to 2024. The property consists of a five-bedroom house. The Landlord occupied four bedrooms with his wife and two children.
The Landlord purchased the property around 2017 and submitted he had one tenant prior to Mr Robertson who had no issues with the property. The Landlord advertised this property as a ‘self-contained dwelling’.
The Tenants room had a kitchen bench, sink, microwave, shower and toilet. There were no cooking facilities such as a stove top, oven or extractor fan. Cooking was only permitted via microwave or toaster. The room had its own separate external access. The Tenant could not enter into the other areas of the property occupied by the Landlord and the Tenants part of the house was blocked by a locked internal door. The parties did not share any communal areas such as a lounge or kitchen space. There was no separate mailbox and the Tenants room was not allocated a separate address. The power, water and internet was included in the rent. There was no separate power or water meters.
When the Tenant moved in, the Landlord lived there with his wife and one child. The Landlord had a second child in 2022.
Towards the end of the tenancy in 2023, the Tenant realised the Landlord had not lodged the bond with the Bond Centre. The Tenant then identified other issues with the tenancy and made this application to the Tribunal.

Was this premise occupied as a separate household unit?

The first issue to determine, is whether the Tenants premises was a separate household unit which means the unit must comply with the Building Act 2004. The question of whether a room was a separate household unit arose in the High Court decision of Clare Dining Harding v Monica Shellevis & Ors [2021] NZHC 1265. In that case, the property was considered the primary residence of the Landlord’s family and therefore the Act did not apply (section 5(1) (n) RTA). The Council confirmed that the property was not to be tenanted as a separate household unit. The Tribunal determined that the Act did apply and the building consisted of two separate and distinct household units. The Landlord appealed eventually to the High Court and Justice Walker concluded that it was a separate unit because of the self-contained character of the granny flat, exclusive use by the Respondent occupiers and exclusive use of the rest of the dwelling by the Appellant and their family. This place was solely occupied by the Respondent so section 5(1)(n) does not apply.
In considering the evidence, I find that the Tenant occupied this property, as a self-contained separate household unit.

Unlawful residential tenancy?

The second issue to determine is whether this premises was an unlawful residential tenancy because the Landlord deposed during the hearing, that he rented the room to the Tenant without any specific Council consent or permit. The Landlord submitted he did not realise he had to obtain a permit but gave evidence that the whole property adhered to the compliance code.
Section 78A(2) of the RTA states: “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 Landlords obligations under section 36 or 45(1) (c )...., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 36 of the Act states that: The Landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes. Section 45(1)(c ) states that: (1) The Landlord shall- (c) Comply with all requirements in respect of buildings health, and safety under any enactment so far as they apply to the premises;
In this case, the issue is whether the Landlords division of the property into two separate household units complied with the regulations.
In considering whether the Landlord has complied with the Building Act 2004, sections 40, 114 and 115 should be applied. Section 40 states that a household unit must have a building consent and be certified as compliant by having a code compliance certificate. If it has neither or a building consent only, it is an unlawful residential premises.
Section 114 requires the Owner to give notice of a change of use of the building and makes failure to do so an offence.
Section 115 requires the owner not to change the use of a building unless the territorial authority gives written notice that they are satisfied on reasonable grounds that the building will comply with the building code.
A change in the use of the building can be defined by Regulation 6 of the Buildings Regulations 2005. Regulation 6 states that every building or part of a building has a use that is specified in schedule 2 of the regulations. There was no evidence provided as to what the property was consented to however the division of the building into two house hold units would make it an SR sleeping residential use.
The Landlord submitted they had complied with the code of compliance and submitted this in evidence from the Council. They initially were aware of many landlords renting out part of their houses and followed suit. They obtained the Tenancy Agreement from Tenancy Services and posted an advertisement for a self contained unit to rent. As far as they were aware, they had done everything legally to ensure this was a valid tenancy.
In considering the evidence, I consider the Landlord has changed the use of the building to which section 115 of the Building Act applies. The Landlord was required to obtain written notice from the Council that the unit occupied by the Tenant would comply with the Building code but failed to provide evidence of this.
I consider that the Landlord has not complied with the Building Act and failed to comply with section 45(1) (c) of the Act. Firstly, he did not provide evidence that the division of his household into two units was consented to by Council. The Landlord also did not provide evidence that he complied with requirements of the buildings, health and safety legislation within the unit which immediately creates safety issues for a Tenant.
For these reasons, I find this premises is an unlawful residential property. The Landlord must cease renting out this property until these issues have been resolved. Breach of Healthy Home Standards
The Tenant submitted the property was in breach of Healthy Home standards, specifically heating and insulation. The Tenant found in winter the property was freezing and in summer there was a lack of airflow. The Tenant could not regulate the airflow because the large windows were at street level so for privacy reasons, the Tenant had to draw the curtains all the time. The Tenant requested a heat pump during the tenancy however was given an oil heater from the Landlord instead. The Tenant also noted there must have been a lack of insulation because it was so cold and the noise from the road was very loud.
The Landlord submitted that it was up to the Tenant to use a heater if he was cold. The Tenant did not complain about the insulation until 2022 when he raised issues about the Landlord’s baby crying excessively. He also did not recall the Tenant raising the issues regarding a heat pump him. The Landlord referred to photographs he provided showing the insulation installed inside the walls and ceiling of the property.
In considering the evidence, the tenancy commenced prior to 1 July 2021 and therefore, compliance with Healthy Home Standards is not required until 1 July 2025. The Tenant also failed to provide independent evidence such as a Healthy Homes report to confirm the property was not compliant.
The claim for breach of Healthy Home Standards is dismissed. Exemplary damages- rubbish bin
The Tenant claimed exemplary damages for failing to provide an external rubbish bin to the Tenant.
There are only certain unlawful acts for which exemplary damages can be claimed. Failing to provide an external rubbish bin is not one of them.
The claim is dismissed. Exemplary damages- separate address
The Tenant claimed exemplary damages for failing to provide a separate address for the tenancy which resulted in his mail and parcels not reaching him.
Again, this is not an unlawful act for which exemplary damages can be claimed but rather a consequence of the Landlord failing to meet their obligations in respect of building standards 1 .
The claim is dismissed. Exemplary damages- breach of peace, comfort and privacy
The Tenant claimed exemplary damages for breach of peace and quiet because the Landlord had a new-born baby that would scream and cry incessantly. The issue with this was that the Tenant was a night shift worker and the Landlord would bathe the child in a room next to the Tenant’s room every day. The sound would travel readily and disrupt the Tenant’s sleep. The Tenant raised this issue with the Landlord and the Landlord responded by enrolling the child in childcare three days a week to stop this from happening.
The Tenant also claimed the Landlord would attend his room unannounced and failed to provide the appropriate written notice beforehand.
The Landlord submitted that they could not control their baby from crying and they were apologetic that this disrupted the Tenant’s sleep. They attempted to resolve the situation by enrolling the child in daycare and offered to end the tenancy because they could not find any other resolution.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 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 section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards 1 RTA at section 45(1A) another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
I do not find the Landlord has committed an unlawful act because the Tenant failed to provide sufficient evidence of the dates and times that the Landlord would attend his property unannounced or when the Landlord would monitor his movements. In terms of the new-born child crying daily which interfered with his peace, comfort or privacy, this action was not intentional and sometimes out of the Landlord’s control.
The claim is dismissed. Exemplary damages- failure to lodge the bond
The Tenant claims the landlord has not lodged the bond with the Bond Centre within the required time. The Tenant discovered in December 2023 that it had not been lodged. It was then refunded to him in March 2024 however the Landlord deducted $230.00 for cleaning.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord acknowledged that he failed to lodge the bond. I find they have committed an unlawful act.
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.
The Landlord submitted it was not intentional and he had simply forgotten to do so.
In considering the evidence, I find the Landlord had sufficient time and experience as a Landlord to be well aware of this obligation. I find this was intentional. The effect of this upon the Tenant was that the Tenant was uncertain whether his bond money was secure because it was not with the Bond Centre and the Landlord unilaterally deducted funds for cleaning costs. For these reasons, I find the Landlord has intentionally committed an unlawful act and the amount ordered is proved. Exemplary damages- lack of cooking facilities
The Tenant claimed the Landlord failed to provide a stove or appropriate cooking facilities.
A Landlord must meet their obligations with respect to buildings, health and safety requirements. An appropriate stove and extractor fans should have been provided for the Tenant.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
I find the Landlord has committed an unlawful act by not providing the appropriate cooking facilities.
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.
The effect of this upon the Tenant was that he was unable to cook food in a stove and he had to purchase a lot of take-outs, microwave food or eat out throughout the tenancy. This also created excess rubbish for the Tenant. The Tenant was not aware of his rights until the end of the tenancy which is why he never complained sooner.
The Landlord submitted that the Tenant was aware from the start of the tenancy of the cooking facilities. The Tenant had inspected the property before moving in and had not complained for most of the five years regarding the facilities. The Tenant had an electric fryer and microwave to use for cooking. The Landlord also had a supporting letter from a previous Tenant advising they had no issue with the room and its facilities.
The Landlord had submitted earlier that he was not aware he needed Council consent to change the use of his property. He had heard of other people renting out rooms to Tenants so he followed suit without being fully aware of the compliance required. He downloaded a Tenancy Agreement precedent off the Tenancy Services website.
In considering the evidence, I find it more likely than not that the Landlords actions in not providing appropriate cooking facilities intentional. It is consistent with the Landlords other failures to comply with their landlord obligations such as not lodging the bond, not providing a separate mailing address and not providing a rubbish bin. The Landlord also had some experience in renting out properties. It is irrelevant whether the Tenant was aware of the limited cooking facilities before commencing the tenancy.
I find the Landlord failed to comply with the appropriate building regulations in not providing the correct cooking facilities and is awarded $2,000.00. Refund of the bond
The tenant has applied for refund of their bond following the end of the tenancy. At the hearing the landlord made a claim against the bond. However, the landlord did not file an application with Tenancy Services.
Section 22B RTA provides: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the balance of the bond is refunded to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.
As the Landlord has not been substantially successful, name suppression is not granted to the Landlord as requested.
As the Tenant did not request name suppression, this has not been granted.
As the Tenant has been substantially successful, the Landlord shall reimburse the filing fee to the Tenant.

Tenancy Tribunal case 4831438 — Exemplary damages at 3 Lisa Rise, Half Moon Bay, Auckland 2012

At a glance

Tenancy Tribunal case 4831438 — Exemplary damages at 3 Lisa Rise, Half Moon Bay, Auckland 2012

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was this premise occupied as a separate household unit?

Unlawful residential tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was this premise occupied as a separate household unit?

Unlawful residential tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions