What was the outcome of Tenancy Tribunal case 4928073?

The tribunal order states: The tenancy of Penisimani Esau Maafu Fine at Granny Flat, 10 Selwyn Downs

How much money was awarded in case 4928073?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4928073?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4928073?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10878061-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4928073?

The tribunal order states: The tenancy of Penisimani Esau Maafu Fine at Granny Flat, 10 Selwyn Downs

How much money was awarded in case 4928073?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4928073?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4928073?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10878061-Tenancy_Tribunal_Order.pdf.

Granny Flat, 10 Selwyn Downs Lane, Opaheke, Auckland Tenancy Tribunal Case 4928073 — Rent arrears

Order

The tenancy of Penisimani Esau Maafu Fine at Granny Flat, 10 Selwyn Downs Lane, Opaheke, Auckland 2110 is terminated, and possession is granted to Oaks Property Management Limited As Agent For Santosh Kumar, at 5:00pm on Thursday 26 September 2024.
The Granny Flat at this address is unlawful residential premises and cannot be rented out as a separate household unit.
This matter is determined as indicated by the orders above, but the landlord is granted a period of two months within which, if it supplies evidence to the Tribunal (to remote.tenancy@justice.govt.nz):- a. from the local authority that the Granny Flat is lawfully able to be used as a separate household unit, and/or b. of special circumstances that mean it would be unjust not to award rent arrears, then the landlord can request that the application be brought back to the Tribunal and the application will be re-opened.

Reasons

The landlord’s representative attended the hearing on 24 September 2024, by telephone.
There was no answer to the telephone number provided for the tenant and the agent says they have not been able to contact him by phone. I did continue with the hearing because notice of today’s hearing has been sent to the tenant’s email address for service.
This tenancy is for a “granny flat” contained within the main house at this address. The granny flat consists of a bedroom, bathroom and kitchen and has its own separate entrances from the outside.
The rest of the house consists of three other bedrooms, kitchen, hallway, living areas and internal access garage.
I am satisfied the granny flat is separate premises.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, rent arrears and refund of the bond.
The issue is whether the granny flat is unlawful residential premises and, if so, whether the tenancy should be terminated and rent arrears ordered.

Is the granny flat unlawful residential premises?

Residential premises are unlawful if they cannot be lawfully occupied for the particular residential purpose for which the tenant is granted occupation, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 and 45(1)(c) Residential Tenancies Act 1986 (RTA). See section 78A(2) RTA.
The main house was built in 2021. The building consent plans specify that the four-bedroom house is to be used as a “single household unit”.
Those plans show internal doorways from the granny flat bedroom and the granny flat “wet kitchen” into the hallway of the house. In other words, the granny flat area was consented and built to be part of, and not separate from, the main house.
The landlord’s representative says that these internal doorways have been blocked off and are now solid walls and that it was the current owner who did, or arranged for, this to be done.
The code of compliance certificate was issued on the basis of the original plans when the granny flat was not separate from the main house.
It is an offence under section 114 Building Act 2004 to change the use of a building without notifying the local authority. The reason for this is so that the local authority can check that the premises comply with the relevant building code requirements.
It is a change of use to change a building from being used for a single household or family to being used for more than one separate household or family if that change results in more onerous building code requirements. 1
On the evidence supplied, I am satisfied that it is more probable than not that the granny flat cannot lawfully be occupied by the tenant as a separate household unit. This is because:- a. The building consent plans specify that the house is to be used as a “single household unit”, and b. The tenant is not a member of the same household that lives in the main house, and c. The owner authorised or did the work to separate the granny flat from the main house and has rented it out so has caused or contributed to the unlawful occupation, and d. The landlord has not supplied a certificate or any other confirmation from the local authority that it is satisfied 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) Building Act 2004.
I have made a declaration that the granny flat is unlawful residential premises.

Should the tenancy be terminated?

The landlord applied for termination of the tenancy because the rent is in arrears and provided rent records which prove rent is at least 21 days in arrears at the hearing date.
The Tribunal may also terminate a tenancy of unlawful residential premises where satisfied it would be inequitable to refuse to do so; s56A(3) RTA.
The rent records show that rent was 98 days in arrears on the hearing date.
I have terminated the tenancy as at 5:00pm on Thursday 26 September 2024 because rent is at least 21 days in arrears on the hearing date and I am satisfied that it would be inequitable to refuse to terminate the tenancy when rent is not being paid and the tenant has not attended the hearing; see sections 55, 56(2) and 56A(2) RTA. 1 “Change of use” is defined in regulations 5 and 6 of The Buildings (Specified Systems, Change the Use, and Earthquake Prone Buildings) Regulations 2005 including a change from “Sleeping – Single Home to “Sleeping – Residential” which is use as multi-unit or more than one household; see Schedule 2.

Should rent arrears be awarded to the landlord?

The landlord’s rent records calculate that the tenant owes rent of $6,860.00 up to the end date of the tenancy.
Normally, the Tribunal will award rent arrears.
However, when premises have been determined to be unlawful residential premises under s78A RTA, the Tribunal must not order the tenant to pay rent arrears or any other compensation unless it would be unjust not to do so (taking into account any special circumstances including the nature of the premises). See s78A(3) RTA.
I have not awarded rent arrears in this order. The landlord did not submit that there were any special circumstances that I should take into account.
However, I have allowed a period of two months within which the landlord may present evidence to the Tribunal either that the granny flat is lawfully able to be used as a separate household unit, and/or of special circumstances that mean it would be unjust not to award rent arrears.
I point out that where premises are unlawful, the Tribunal is also able to order the landlord to refund part or all of any rent paid by the tenant during the tenancy; see s78A(4) RTA. Bond
I have not made an order for rent arrears, so I have not refunded the bond. Filing fee and suppression
The landlord has been only partially successful, so I do not award the filing fee and neither do I suppress either the landlords’ or tenant’s name. There is a public interest in both parties names because the granny flat cannot lawfully be rented out as separate premises to someone outside of the main household and the tenant has not paid rent.

Order

The tenancy of Penisimani Esau Maafu Fine at Granny Flat, 10 Selwyn Downs Lane, Opaheke, Auckland 2110 is terminated, and possession is granted to Oaks Property Management Limited As Agent For Santosh Kumar, at 5:00pm on Thursday 26 September 2024.
The Granny Flat at this address is unlawful residential premises and cannot be rented out as a separate household unit.
This matter is determined as indicated by the orders above, but the landlord is granted a period of two months within which, if it supplies evidence to the Tribunal (to remote.tenancy@justice.govt.nz):- a. from the local authority that the Granny Flat is lawfully able to be used as a separate household unit, and/or b. of special circumstances that mean it would be unjust not to award rent arrears, then the landlord can request that the application be brought back to the Tribunal and the application will be re-opened.

Reasons

The landlord’s representative attended the hearing on 24 September 2024, by telephone.
There was no answer to the telephone number provided for the tenant and the agent says they have not been able to contact him by phone. I did continue with the hearing because notice of today’s hearing has been sent to the tenant’s email address for service.
This tenancy is for a “granny flat” contained within the main house at this address. The granny flat consists of a bedroom, bathroom and kitchen and has its own separate entrances from the outside.
The rest of the house consists of three other bedrooms, kitchen, hallway, living areas and internal access garage.
I am satisfied the granny flat is separate premises.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, rent arrears and refund of the bond.
The issue is whether the granny flat is unlawful residential premises and, if so, whether the tenancy should be terminated and rent arrears ordered.

Is the granny flat unlawful residential premises?

Residential premises are unlawful if they cannot be lawfully occupied for the particular residential purpose for which the tenant is granted occupation, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 and 45(1)(c) Residential Tenancies Act 1986 (RTA). See section 78A(2) RTA.
The main house was built in 2021. The building consent plans specify that the four-bedroom house is to be used as a “single household unit”.
Those plans show internal doorways from the granny flat bedroom and the granny flat “wet kitchen” into the hallway of the house. In other words, the granny flat area was consented and built to be part of, and not separate from, the main house.
The landlord’s representative says that these internal doorways have been blocked off and are now solid walls and that it was the current owner who did, or arranged for, this to be done.
The code of compliance certificate was issued on the basis of the original plans when the granny flat was not separate from the main house.
It is an offence under section 114 Building Act 2004 to change the use of a building without notifying the local authority. The reason for this is so that the local authority can check that the premises comply with the relevant building code requirements.
It is a change of use to change a building from being used for a single household or family to being used for more than one separate household or family if that change results in more onerous building code requirements. 1
On the evidence supplied, I am satisfied that it is more probable than not that the granny flat cannot lawfully be occupied by the tenant as a separate household unit. This is because:- a. The building consent plans specify that the house is to be used as a “single household unit”, and b. The tenant is not a member of the same household that lives in the main house, and c. The owner authorised or did the work to separate the granny flat from the main house and has rented it out so has caused or contributed to the unlawful occupation, and d. The landlord has not supplied a certificate or any other confirmation from the local authority that it is satisfied 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) Building Act 2004.
I have made a declaration that the granny flat is unlawful residential premises.

Should the tenancy be terminated?

The landlord applied for termination of the tenancy because the rent is in arrears and provided rent records which prove rent is at least 21 days in arrears at the hearing date.
The Tribunal may also terminate a tenancy of unlawful residential premises where satisfied it would be inequitable to refuse to do so; s56A(3) RTA.
The rent records show that rent was 98 days in arrears on the hearing date.
I have terminated the tenancy as at 5:00pm on Thursday 26 September 2024 because rent is at least 21 days in arrears on the hearing date and I am satisfied that it would be inequitable to refuse to terminate the tenancy when rent is not being paid and the tenant has not attended the hearing; see sections 55, 56(2) and 56A(2) RTA. 1 “Change of use” is defined in regulations 5 and 6 of The Buildings (Specified Systems, Change the Use, and Earthquake Prone Buildings) Regulations 2005 including a change from “Sleeping – Single Home to “Sleeping – Residential” which is use as multi-unit or more than one household; see Schedule 2.

Should rent arrears be awarded to the landlord?

The landlord’s rent records calculate that the tenant owes rent of $6,860.00 up to the end date of the tenancy.
Normally, the Tribunal will award rent arrears.
However, when premises have been determined to be unlawful residential premises under s78A RTA, the Tribunal must not order the tenant to pay rent arrears or any other compensation unless it would be unjust not to do so (taking into account any special circumstances including the nature of the premises). See s78A(3) RTA.
I have not awarded rent arrears in this order. The landlord did not submit that there were any special circumstances that I should take into account.
However, I have allowed a period of two months within which the landlord may present evidence to the Tribunal either that the granny flat is lawfully able to be used as a separate household unit, and/or of special circumstances that mean it would be unjust not to award rent arrears.
I point out that where premises are unlawful, the Tribunal is also able to order the landlord to refund part or all of any rent paid by the tenant during the tenancy; see s78A(4) RTA. Bond
I have not made an order for rent arrears, so I have not refunded the bond. Filing fee and suppression
The landlord has been only partially successful, so I do not award the filing fee and neither do I suppress either the landlords’ or tenant’s name. There is a public interest in both parties names because the granny flat cannot lawfully be rented out as separate premises to someone outside of the main household and the tenant has not paid rent.

Tenancy Tribunal case 4928073 — Rent arrears at Granny Flat, 10 Selwyn Downs Lane, Opaheke, Auckland

At a glance

Tenancy Tribunal case 4928073 — Rent arrears at Granny Flat, 10 Selwyn Downs Lane, Opaheke, Auckland

At a glance

Claims & awards

Order

Reasons

Is the granny flat unlawful residential premises?

Should the tenancy be terminated?

Should rent arrears be awarded to the landlord?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Is the granny flat unlawful residential premises?

Should the tenancy be terminated?

Should rent arrears be awarded to the landlord?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions