What was Tenancy Tribunal case 4879021 about?

The tribunal order states: [The tenant’s] name and identifying details must not be published.

How much money was awarded in case 4879021?

Filing Fee: $20.44 awarded to landlord; Rent Refund For Unlawful Premises 15…: $1,006.93 awarded to landlord

What type of tenancy dispute was case 4879021?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4879021?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10666339-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4879021 about?

The tribunal order states: [The tenant’s] name and identifying details must not be published.

How much money was awarded in case 4879021?

Filing Fee: $20.44 awarded to landlord; Rent Refund For Unlawful Premises 15…: $1,006.93 awarded to landlord

What type of tenancy dispute was case 4879021?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4879021?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10666339-Tribunal_Order_Redacted.pdf.

9 Clonmany Road, Flat Bush, Auckland 2019 Tenancy Tribunal Case 4879021 — Cleanliness

Claims and awards in Tenancy Tribunal application 4879021. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent refund for unlawful premises 15 percent	$1,006.93		Rent refund for unlawful premises 15 percent
Filing fee	$20.44		Filing fee

Claims and awards in Tenancy Tribunal application 4879021. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent refund for unlawful premises 15 percent	$1,006.93		Rent refund for unlawful premises 15 percent
Filing fee	$20.44		Filing fee

Order

[The tenant’s] name and identifying details must not be published.
The tenant’s claim that the premises was an unlawful premises is allowed. The Tribunal declares that the premises were unlawful premises.
All other claims are dismissed.
Huayun Wu must immediately pay [the tenant] $1,027.37 as calculated in the table below.
The Bond Centre is to pay the bond of $740.00 to [the tenant] immediately.
44 Total award $1,027.37

Reasons

Both parties attended the hearing.
The landlord’s daughter-in-law, Yenxia He, attended the hearing as a support person.
Rosie Zhang interpreted Mandarin and English for the parties and the Tribunal.
The tenant claims the landlord breached an agreement that she would install a sink, that the premises were unlawful, and that the landlord unlawfully terminated the tenancy. For remedy she seeks a rent refund and compensation. She also seeks an order for return of the bond.

Was the premises an unlawful premises?

Legal principles

The Tribunal may declare premises to be unlawful residential premises under s 77(2)(ac) of the Residential Tenancies Act 1986 (RTA).
Under s 78A(2) of the RTA, residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with: a. s 36 of the RTA (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); or b. s 45(1)(c) of the RTA (comply with all requirements in respect of buildings).
Where the Tribunal declares the residential premises to be unlawful, it 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: s 78A(4)(a) of the RTA.
Relevantly for this case, household units may not be divided into smaller household units without fulfilling change of use rules which involve Council issuing a Certificate of Code Compliance. Section 115(1) of the Building Act 2004, provides: 115 Code compliance requirements: change of use An owner of a building must not change the use of the building,— (a) in a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use, will comply, as nearly as is reasonably practicable, with the building code in all respects...
Premises must have a kitchen and the kitchen must have a sink and a tap, and a means of baking and boiling food. 1 Discussion
The tenant says that she lived in a downstairs section of the landlord’s house. Her area consisted of a bedroom, deck area, a bathroom, a small sitting room, which included a bench, drawer, cupboard area suitable for a microwave, kettle, and toaster. She had access to a fridge in the adjacent garage, and a washing machine and tub on the deck. She says she also had access to an outdoor cooking cabinet containing a gas stove, an extractor fan, lighting, and a sink.
When she viewed the premises, she saw that the current tenant had a plug-in induction hotplate cooker. The tenant says she intended to use the hotplate to cook in the sitting room.
The tenant says that her unit was separate from the rest of the house where the landlord lived with other people. In the parties’ WeChat messages, the landlord said prior to the tenancy: You go in and out of the garage independently. There’s a lock on your side.
The landlord also sent a photograph saying: The kitchen is like this...It is simple cooking with induction cooker.
The landlord also WeChatted prior to the tenancy: This picture, I am going to install a sink
The landlord says the tenant’s unit was not separate. The tenant was welcome to use the rest of the house including the main kitchen and the butlers’ kitchen. The butlers’ kitchen could be accessed from the tenant’s deck and was always left open. However, she respected the tenant wanted privacy, so the landlord never went to the tenant’s part of the premises without permission. 1 Housing Improvement Regulations 1947, regs 5, and 7.
The tenant disputes the landlord’s account. She says she was never shown the butler’s kitchen entry and she only went to the landlord’s side of the house at her invitation to occasionally share a meal. She never used the main kitchen because that was exclusively the landlord’s area. She says the landlord later introduced her to a portable kitchen on the deck outside her unit which she was encouraged to use. It would not make sense for her to complain to the landlord about rodents getting into the outdoor kitchen cabinet if she was using the butler’s kitchen.
The High Court dealt with a similar issue in Harding v Caroto and Ors [2021] NZHC 1265. In that case, a house had been made into two separate residential units, although the units at one point were separated by only a door with a magnetic catch.
In Harding, Walker J found what matters was not that the tenant could physically access the area the landlord used but rather whether the tenant was legally entitled to access the area: 2 [T]he right to occupy held by the respondents did not extend to any area used by the appellant or her family during that period of occupancy. There were no shared or common areas which characterise a flat share. The fact that the granny flat was only physically separated from the rest of the house by a set of internal double doors with a magnetic latch does not alter this analysis. It is not the physical possibility of access which matters but whether the occupants were lawfully entitled to enter any other part of the house. Similarly, the fact that the appellant did enter the granny flat from time to time for maintenance and cleaning says nothing about the legal character of the occupancy. She had no entitlement without notice under the written terms of the agreement between the parties. That is determinative.
Thus, the premises are that area the tenants have a right to occupy under the tenancy agreement. The physical possibility of access does not matter; it is the legal entitlement to enter that is important.
In this case I accept the tenant’s evidence that she did not have an entitlement to enter and use the landlord’s part of the house under the tenancy agreement. She was not supposed to use either the main kitchen or the butler’s kitchen. She was expected to use the outdoor kitchen or the sitting room bench area to prepare meals. Conclusion
I am satisfied on the balance of probabilities that the tenant occupied the bedroom, sitting room, deck area, and bathroom as a separate residential unit. 2 Ibid at [38].
The tenant had no entitlement to use the kitchen or butler’s kitchen. She was meant to use the sitting room “kitchen” or the outdoor kitchen cabinet to prepare food. It follows, the landlord did not take all reasonable steps to ensure that, at the commencement of the tenancy, there was no legal impediment to the occupation of the premises for residential purposes.
For these reasons, the premises were unlawful under s 78A(2) of the RTA.
I turn now to consider whether the Tribunal should order the landlord to repay any of the rent.

Rent reduction?

Where it finds premises are unlawful residential premises under s 78A(4) of the RTA, the Tribunal may order the landlord to (i) repay the tenant all the rent they paid; or (ii) a lesser amount of rent repayment that it finds fair having regard to the special circumstances of the case, including the nature of the premises.
I consider that s 78A(4)(ii) should apply to this case because applying s 78A(4)(i) would be unfair to the landlord.
I must carefully weigh what amount of rent it is fair to deduct.
The special circumstances I must have regard to are not stated except for the nature of the premises.
Other special circumstances I have weighed include: 3 a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenants’ 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.The detriment or loss the tenants suffered. g. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. h. The public interest in discouraging tenancies of unlawful premises. 3 See Janet Robertshawe’s 2019 conference paper, The Legacy of Anderson v FM Custodians: Section 78A Tenancies.
The nature of the premises was good to a point. The tenant lived there in relative comfort. However, the outdoor cooking arrangements were not ideal, and the wiring and hygiene of the outdoor cooking cabinet was suspect.
The unit looks clean, modern, and tidy. However, the unit had no proper food preparation area or dedicated kitchen sink inside.
The sitting room was not built to operate as a kitchen. Using a plug-in hot plate could cause safety issues because kitchen areas require a higher level of fire rating. The sitting room would have been safer if a proper consents process had been followed.
The landlord and the tenants largely got on well until they fell out.
The landlord charged the tenant $370.00 which does not seem exploitative given the unit was largely well-appointed.
The landlord benefitted from the tenants’ rent payments.
Aside from the kitchen problems, including rodents getting into the outdoor kitchen, the tenant seems to have been generally happy with the premises. The tenant had the benefit of their own separate premises at a reasonable cost.
The tenant’s claim is genuine.
I consider a reduction in rent paid is required to ensure that the landlord does not unfairly profit from the unlawful premises.
The public interest also calls for a rent reduction to discourage tenancies of unlawful premises such as these.
In Makele v Presland and Co [2024] NZTT [Event location suppressed] 4290197 Adjudicator D Milne cited awards in comparable cases to this at [94] of her decision: 4 Cases where garages, basement conversions or parts of premises being used as a larger household unit have been converted and then used as a separate household unit, without Council consent as to the change of use. The premises themselves may have had the necessary building consents but there is no Council approval for the use of the premises as a separate household unit. These cases include: Abaid v Mounsouphom, 5 (garage conversion. tenant awarded a rent refund of 50%), None v None, 6 (separate sleepout not consented for use by Council as a sleepout, 50% of rent refunded to tenant), Haldane v Liu, 7 (conversion of basement into two separate household units, full refund of rent awarded), Zowitzkey v Hemmings, 8 (tenant occupied lower level of two story 4 See also Chen v Kumar [2022] NZDC 7783, a case where the breach of planning or consenting rules was of a technical nature. The breach in this case is not just technical. 5 [2019] NZTT Manukau 4181975. 6 [2021] NZTT [Event location suppressed] 4295031. 7 [2019] NZTT Auckland 4202359, 4212111. 8 [2020] NZTT North Shore 4257512, 4264964. house, the change of use was not consented by Council and the premises did not have a consented kitchen , $7100 was refunded to the tenant), Wilding-James v Dormer, 9 (premises was a converted barn, tenant refunded 50% of the rent), Wilson v Green 10 (converted shed with no Council consent to change the use, 5% of rent refunded), Redacted v Kranenberg 11 (the landlord’s property comprised of two properties but it was only consented to be used as one residential dwelling, two thirds of the overall rent paid was refunded to the tenant). Conclusion
I conclude the landlord should repay the tenant 15 per cent of the rent they paid.
That amounts to $55.50 per week, and $1,006.93 in total.
I have double-checked whether that outcome is fair: I stand back and reconsider the factors discussed above against the final figure I have arrived at. The outcome is fair.

Did the landlord contract that she would install a sink?

The tenant claims the landlord agreed that she would install a sink in the sitting room in consideration of the tenant agreeing to the tenancy.
The tenant relied on a photograph in which the landlord had circled the sitting room bench area accompanied by the comment, “ This photo. I’m going to install a sink”.
However, another of the landlord’s messages says, “there’s actually a laundry sink that you can use”.
There are no later communications that query for instance when the landlord would meet the purported term of the tenancy agreement that she would install a sink.
The tenancy was supposed to last a year. It is possible the landlord did intend to install a sink during that time but had decided exactly when she would. That the landlord had an intention to install a sink at some time does not elevate the intention to a contractual term, however.
I am not persuaded that the landlord contracted to install a sink. 9 [2020] NZTT North Shore 4273164, 4279391. 10 [2020] NZTT Whangarei 4273604, 4278007. 11 [2021] NZTT 4298196, 4294929.

Did the landlord unlawfully terminate the tenancy?

The tenant claims the landlord terminated the tenancy without proper grounds or notice.
The landlord says, the tenant wanted to leave, and she merely consented to her leaving.
I have considered the translations of the landlord’s voice message and the WeChat messages about the tenant moving out.
The messages do not satisfy me that the landlord terminated the tenancy.
I do not find it proven that the landlord terminated the tenancy.
This claim is dismissed. Filing fee
The landlord must reimburse the tenant for the filing fee. Bond
The landlord has not claimed for the bond.
The Bond Centre must release the bond to the tenant. Non-publication
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. 12
The tenant has substantially succeeded in the proceedings. I do not consider that publication is in the public interest of is justified by the tenant’s conduct or any other circumstances. 12 RTA, s 95A(1).
The Tribunal orders non-publication of the tenant’s name.

Tenancy Tribunal case 4879021 — Cleanliness at 9 Clonmany Road, Flat Bush, Auckland 2019

At a glance

Tenancy Tribunal case 4879021 — Cleanliness at 9 Clonmany Road, Flat Bush, Auckland 2019

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Was the premises an unlawful premises?

Rent reduction?

Did the landlord contract that she would install a sink?

Did the landlord unlawfully terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Was the premises an unlawful premises?

Rent reduction?

Did the landlord contract that she would install a sink?

Did the landlord unlawfully terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions