What was Tenancy Tribunal case 4836794 about?

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

How much money was awarded in case 4836794?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4836794?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4836794?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10858491-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4836794 about?

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

How much money was awarded in case 4836794?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4836794?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4836794?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10858491-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4836794 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The tenant’s application is dismissed.

Reasons

Both parties attended the hearing. The tenant attended in person. The landlord attended by telephone.
The tenant claims repayment of the rent he has paid under this tenancy and cancelation of the Tribunal’s order made on 16 August 2022 requiring him to pay rent arrears. The ground of his claim is that the premises were unlawful residential premises to which s77A of the Residential Tenancies Act 1986 (the Act) applies.
I set out below s77A in full. 78A Orders of Tribunal relating to unlawful residential premises (1) This section applies in any matter where the Tribunal, on application by a party or otherwise on the evidence before the Tribunal in respect of any claim within its jurisdiction, determines or declares that the premises are, or were at any material time, unlawful residential premises. (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), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation. (3) Despite anything to the contrary elsewhere in this Act,— (a) unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i)any sum found to be owing by way of rent in arrear; or (ii)any other sum by way of damages or compensation: (b) if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy. (4) Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in accordance with this Act in relation to the matter,— (a) the Tribunal may order the landlord to pay to the tenant— (i)the whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful residential premises; or (ii)an amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct: (b) a section 78A work order may comprise or include an order that the landlord take the steps available to the landlord, as specified in the order, to (or to endeavour to)— (i)remove or rectify any impediment to the tenant lawfully occupying the premises for residential purposes; or (ii)comply with all requirements in respect of buildings, health, or safety under any enactment so far as they apply to the premises. (5) Even if the tenant does not apply for a particular order, the Tribunal may make any of the following orders on its own initiative: (a) any order under subsection (4)(a); and (b) any section 78A work order; and (c) any other order, authorised by this Act, that is in favour of the tenant (including, without limitation, an order under section 109 for an amount in the nature of exemplary damages for failure to comply with section 45(1)(c) or 66I(1)(c)).
Section 36 of the Act states. 36 Legal Impediments to Occupation 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) of the Act sets out the landlord’s responsibilities relating to the condition of the premises. Background
The premises are a seaside dwelling near Westport that was damaged by cyclone Fehi in 2018.
This is the fourth application concerning this tenancy. The landlord has made two applications, and the tenant has made two applications.
The effect of the decisions that have been made previously is that there was a period of 10 weeks from June 2020 when the tenant was living in the premises and carrying out work on them as agreed with the landlord. He was paying no rent and so there was no tenancy during that time.
He then began paying rent at the rate of $200 per week from September 2020 and a tenancy arose. Rent arrears started to accrue from March 2021.
The landlord applied for termination and rent arrears and the tenant cross claimed that there was an agreement for sale and purchase of the premises between him and the landlord. He also claimed compensation for work that he has carried out on the premises.
The Tribunal terminated the tenancy and ordered the tenant to pay rent arears. It found that because there was no tenancy when the tenant carried out work to the premises, the Tribunal had no jurisdiction to determine the tenant’s claim in relation to that work.
The Tribunal also found that if there was an agreement for sale and purchase (it was not within its jurisdiction to decide that issue) the tenancy and the sale and purchase agreement were entirely separate.
The landlord applied for compensation for damage to the premises during the pre-tenancy period. For obvious reasons the Tribunal decided that it did not have jurisdiction to determine that application.
The first issue that the Tribunal must consider in relation to this application is whether the premises were unlawful residential premises. The tenant asserts that they were because they were subject to a “red sticker” after the cyclone in 2018. A ‘red sticker” is a notice that the local authority can affix to a building declaring that it cannot be occupied because it is unsafe.

Unlawful Premises?

The Tribunal raised this issue on its own initiative previously and it has therefore given it some consideration. It decided that the evidence it had relating to the issue was inconclusive and so it did not pursue the issue further.
The tenant then filed this application. The Tribunal decided that the issue had not been previously determined (res judicata) and therefore it had jurisdiction to hear the application.
The underlying issue is whether the Buller District Council (BDC) placed a red sticker on the premises in 2018. There was some evidence that it, did but also evidence that cast doubt on that. There was no live evidence in this case from anyone other than the parties.
There was written evidence from officers of BDC stating that a red sticker was placed on the premises and that it has never been removed. There is also a record held by BDC that it was placed on the premises on 3 February 2018.
Against that there is an email from the officer who said that he placed the red sticker on the premises stating that there is no record of the sticker on the property file for the premises. He wrote in an email - I guess that as there is no physical record, we cannot claim that this (placing the red sticker on the premises) actually occurred.
The landlord said that she did not receive a copy of any from BDC notice as the Building Act 2004 requires. Failure to serve the notice on the owner does not invalidate a notice, but it is relevant to whether it was placed on the premises.
Both parties believed that there was a red sticker on the premises but neither of them saw such a notice on the premises.
The tenant has produced statements from his brother and a member of the Fire Service stating that there was a red sticker on the premises, but they do not say that they saw it.
In the Tribunal’s order made on 15 May under this application I said - The tenant will wish to consider calling the Councils’ CEO and the Team Leader of Building at the Council, Mr Knudson, who appears to have some personal knowledge of the red sticker. I note that they can attend by telephone and if they are reluctant to attend, the tenant can apply for a witness summons requiring them to attend.
The tenant has not arranged for any witnesses to attend the hearing to give evidence. The result is that the uncertainty regarding whether the premises were red stickered remains. Nothing has changed since the Tribunal decided that the evidence was unsatisfactory and that it should not pursue the issue.
There are several unanswered questions relating to the red sticker. For example, why is there no physical evidence of it such as a photograph of it on the premises or even a copy of it, why is it not on the property file, why was a copy of the notice not sent to the landlord and why is there no evidence of subsequent inspections of the premises?
After considering all the evidence, I am not satisfied that, on the balance of probabilities, the premises were red stickered and therefore I cannot find that the premises were unlawful residential premises. For that reason, the tenant’s application must be dismissed. S36 and S45(1)(c) of The Act
In case I am wrong in my conclusion about the red sticker, I will consider whether either of these sections are engaged.
The first point to note is that if the premises were red stickered it was not due to anything that the landlord did or failed to do. It was due to damage caused by cyclone Fehi.
The parties agreed that the tenant would carry out work to the premises during the rent-free period to put them in a condition so the (perceived) red sticker could be removed. There was some dispute over precisely what that entailed, but broadly it was to ensure that they were sanitary.
The tenant said that he found the pipe connecting the toilet to the septic tank needed to be replaced and he replaced it. He is not a qualified drain layer and he understood that that for the BDC to approve the work, it would require certification by the qualified drain layer. He said that he tried to get someone to certify the work, but no one was willing to certify work that they did not complete themselves.
The tenant also said that he did not approach BDC about passing the work so that the red sticker could be removed.
Both parties were under the impression that the premises had been red stickered, and they agreed that the tenant would carry out the work needed to remove the sticker. The tenant failed to do so and having failed to do so, he remained living in the premises, without any objection from BDC, for the next two years.
The landlord reasonably assumed that the tenant would do what was necessary to remove the red sticker. It follows, in my view, that she was not in breach of s36 of the Act. She had taken all reasonable steps to ensure that there was no impediment to the tenant occupying the premises. If the premises were red stickered when the tenancy began, that was entirely due to the tenant failing to carry out the work required to make the premises sanitary.
Given that the tenant had agreed to make the premises liveable, I also fail to see how the condition of the premises, if they did not comply with what was required in terms of their condition by s45(1)(c) of the Act, could be said to be the result of a breach of that provision by the landlord. The landlord was reasonably relying on the tenant to ensure that the premises were compliant to the extent that the red sticker could be removed.
I find, therefore, that if the premises were red stickered during the tenancy, it was not caused or contributed to by any breach by the landlord of s36 or s45(1)(c) of the Act. The sole cause was the tenant’s failure to do what he had agreed to do.
For these reasons the tenant’s application is dismissed. Suppression
The tenant has succeeded and so I grant her request for name suppression.

Tenancy Tribunal case 4836794 — Rent arrears

At a glance

Tenancy Tribunal case 4836794 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Unlawful Premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Unlawful Premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions