What was Tenancy Tribunal case 4886376 about?

The tribunal order states: The part of the premises lived in by the tenants during the tenancy are unlawful

How much money was awarded in case 4886376?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4886376?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4886376?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10881545-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4886376 about?

The tribunal order states: The part of the premises lived in by the tenants during the tenancy are unlawful

How much money was awarded in case 4886376?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4886376?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4886376?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10881545-Tribunal_Order_Redacted.pdf.

34 Hart Road, Tamahere, RD 3, Hamilton 3283 Tenancy Tribunal Case 4886376 — Rent arrears

Order

The part of the premises lived in by the tenants during the tenancy are unlawful residential premises (one bedroom with en-suite and shared kitchenette and living area in the guest wing).
The landlord’s application for compensation is dismissed.

Reasons

All parties attended the hearing held in person on 3 September 2024.
This is a landlord application for compensation for alleged damage relating to a tenancy which ended on 27 January 2024. The tenants had lived at the premises for just over 2 and a half years.
This is the second application to the Tribunal.
The first application was about whether the tenants were flatmates or boarders of the landlord (meaning that the Residential Tenancies Act 1986 did not apply), or whether they rented premises separate from where the landlord lived.
The Tribunal decided that the tenants lived in a separate part of the premises from where the landlord lived which meant that the Residential Tenancies Act 1986 (RTA) applied. 1
There is a single large house at this address with 9 bedrooms, each with its own en-suite bathroom. The landlord and his family occupy 7 of the bedrooms, a main kitchen and living area, separate lounge, internal garage, and laundry.
Two of the bedrooms have been separated off from the rest of the house with an internal wall built by the landlord. Included in this “guest wing” is a kitchenette and small adjoining living area. The landlord said in the hearing that the kitchenette is “not allowed” to have a built-in oven. It contains a sink, portable benchtop oven, microwave, and fridge.
The previous decision determined that the tenancy premises rented by the tenants consisted of one of the bedrooms (with en-suite) in the guest wing, together with shared use of the kitchenette and adjoining living area. Another occupant lived in the other bedroom (with en-suite) in the guest wing. The tenants and this occupant shared the kitchenette and living area.
The parties said there was another small common area in the guest wing, used for storage, which the landlord had access to.
The previous application was made by the tenants and was for return of a bond they had paid to the landlord. Refund of the bond was ordered to them because the landlord had not made an application setting out his counterclaim.
The landlord has paid the bond to the tenants and has now filed this application.

Should the hearing be adjourned for more evidence?

I explained to the parties during the hearing that there was an issue as to whether the part of the house that the tenants lived in was lawfully able to be lived in as a separate household unit. There are building and resource management laws about household units. One of the main purposes of these laws is to ensure that premises are safe, sanitary, and durable.
I also explained that the Tenancy Tribunal has three main functions: to apply the law, to do so fairly, and to do so efficiently; see s85 RTA.
I offered the parties the opportunity to adjourn the hearing to allow them both to provide more evidence on the lawfulness and compliance of the tenancy premises. They both preferred that I instead made the decision based on the evidence available and without further delay. 1 [2024] NZTT 4805040 Can the separate part of the premises the tenants lived in be lawfully occupied as a separate household unit?
Residential premises are unlawful if they cannot lawfully be occupied for the particular purpose for which they are being occupied, and the landlord has caused or contributed to the unlawful occupation by failing to make sure the premises can be lawfully rented out or by failing to comply with all building laws (sections 36 or 45(1)(c) RTA). See section 78A(2) Residential Tenancies Act 1986 (RTA).
The owner of a building must provide written notice to the territorial authority (council) if they propose to change the use of a building or part of a building; section 114 Building Act 2004 (“BA 2004”). 2 The owner must not change the use unless notified in writing that the territorial authority is satisfied the building in its new use will comply with the relevant building code requirements; s115 BA 2004.
On the evidence supplied, I am satisfied that it is more probable than not that the tenancy premises could not lawfully be occupied by the tenants as a separate household unit during the tenancy; s78A(2)(a) RTA. This is because:- a. The floor plan provided by the landlord shows a single large 9-bedroomed home originally with no separating wall between the main part of the house and the “guest wing”. b. The landlord has drawn onto the floor plan, in blue pen, the new separating wall and internal door that he said that he built between the main part of the house and the guest wing. c. The premises are located within the ‘Country Living (Waikato)’ district planning zone of the Waikato Operative District Plan which allows only one dwelling per certificate of title as a permitted activity. 3 d. A “dwelling” is defined as “... a building for the occupation of a single household unit containing only one kitchen and may include an additional kitchenette. It includes a dependent person’s dwelling.” 4 e. A “dependent persons dwelling” is a dwelling less than 70 square metres in size, built for occupation by a dependent relative of the occupiers of the principal dwelling on the same site. f. The tenants are not dependent relatives or part of the same household unit as the landlord. 2 “Change of use” is defined in regulations 5 and 6 of The Buildings (Specified Systems, Change the Use, and Earthquake Prone Buildings) Regulations 2005. 3 Chapter 27.42.1 of the Operative Waikato District Plan 2013. 4 Appendix P, ‘Meaning of Words’, Operative Waikato District Plan 2013. g. The use of the house has been changed from being used for a single household or family to being used for more than one separate household or family. 5 h. The landlord confirmed in the hearing that he has not notified the council of the change of use of the house. The landlord as the owner of the building had a legal obligation to notify the council of the proposed change of use and did not do so; s114 BA 2004. i. There is no evidence that the council has confirmed in writing that the new use of the house as two household units complies as nearly as reasonably practicable with the building code provisions on escape from fire, protection of other property, sanitary facilities, structural performance and fire-rating performance; see s115(b) BA 2004. j. It is possible that the new use does comply with those parts of the building code. However, I consider that the task of proving that should rest on the landlord because it is his obligation to notify the council of the proposed change of use.
The landlord has caused or contributed to the unlawful occupation by failing to comply with all building laws (s45(1)(c) RTA); s78A(2)(b) RTA. The failure to notify the council of a proposed change of use before building the interior wall and door and renting out the guest wing to persons who are not dependent relatives is a breach of s114 BA 2004.
I have made a declaration that the part of the premises lived in by the tenants during the tenancy are unlawful residential premises. See section 77(2)(ac) Residential Tenancies Act 1986.

Should the landlord be awarded compensation?

Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order.
In addition, the Tribunal may order the return of part, or all rent paid by the tenant and 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. 5 This is a change from “Sleeping – Single Home to “Sleeping – Residential” which means use as multi- unit or more than one household; see Schedule 2, The Buildings (Specified Systems, Change the Use, and Earthquake Prone Buildings) Regulations 2005.
The landlord alleges damage to chattels: benchtop oven residue from cleaning, top of bedside table, scratches on toilet seat, a mark on the top of a dresser, and carpet cleaning.
I asked the tenants about the quality of the premises. They said that the premises functioned well, and they were happy with the facilities.
After taking into account all of the circumstances, I decided in the hearing to dismiss the landlord’s claims for compensation and not to consider any refund of rent to the tenants. My reasons are:- a. My finding that the tenancy premises were unlawful means that compensation should not be awarded to the landlord unless I consider it would be unjust not to do so. b. I do not consider it unjust because the cosmetic damage to the benchtop oven does not affect its operation and the marks on the dresser and beside table are most probably wear and tear from normal use (the furniture is laminate, or veneer, so will wear more quickly). c. The tenants did not have any quality concerns about the premises and have received fair value for the tenancy so it would not be just to refund any rent. Filing fee and suppression of name
The landlord has not succeeded in the claim, so I do not award the filing fee.
No award has been made against the tenants, so they are entitled to suppression of their names. I do not suppress the landlord’s name as there is a public interest in the issue of the lawfulness of the tenancy premises.

Tenancy Tribunal case 4886376 — Rent arrears at 34 Hart Road, Tamahere, RD 3, Hamilton 3283

At a glance

Tenancy Tribunal case 4886376 — Rent arrears at 34 Hart Road, Tamahere, RD 3, Hamilton 3283

At a glance

Claims & awards

Order

Reasons

Should the hearing be adjourned for more evidence?

Should the landlord be awarded compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the hearing be adjourned for more evidence?

Should the landlord be awarded compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions