What was Tenancy Tribunal case 4939638 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4939638?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4939638?

The primary dispute was Cleanliness. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4939638?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10810574-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4939638 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4939638?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4939638?

The primary dispute was Cleanliness. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4939638?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10810574-Tribunal_Order.pdf.

Unit/Flat Unit 4, 1 Koru Place, Stoke, Nelson 7011 Tenancy Tribunal Case 4939638 — Cleanliness

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The tenant sought $1000.00 compensation and a full refund of rent ($4,600) per s 78A Residential Tenancies Act 1986 (“RTA”).
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. Background
This was a short tenancy of some nine weeks. It started as a fixed-term tenancy, but the landlord released the tenant early when so requested.
The owner purchased the two cojoined units in this complex. The remaining downstairs commercial tenant has been there since purchase. The upstairs had an existing residential tenancy that continued with this owner. There have been a number of subsequent upstairs tenancies since. The unit is presently vacant pending confirmation/consent from the local council.
The premises is an upstairs unit in a mixed-use complex, zoned industrial, along with approximately 11 other similar ones. They typically comprise a downstairs commercial or light industrial unit with a separate upstairs residential or office unit. The majority of the upstairs units appear to operate under separate tenancies from the downstairs unit. The tenant application

Was the premises unlawful?

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 the premises 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). See s 78A RTA.
Specifically, sub-section (4) provides: (4) Without limiting the generality of s77 or the nature or extent of orders that the Tribunal may make – (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 (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
The tenant queried the local council regarding the lawfulness of the unit as a residential premises. The reply via email was provided.
The writer then suggests that, based on what he had been told by the tenant, the unit is not an ancillary part of any permitted industrial activity downstairs. Stating:
The landlord submitted that the use of the upstairs unit for residential tenancies was consistent since purchase, as with the typical use elsewhere in the complex. He further advised he has since progressed the necessary consenting application with the council and this is pending approval. He said to date no modifications had been flagged as required. He has not relet the premises and will not until total compliance is confirmed.
There is limited evidence regarding the consented status but from what has been provided it appears to support the tenant claim of a technical breach of the consent that would have permitted a separate residential tenancy upstairs.
Section 78A was inserted into the RTA on 27 August 2019. There is a real public concern about vulnerable tenants renting unlawful premises. In the worst cases the tenants are exposed to serious health and safety risks.
In this instance, I do not consider the arrangement to be proven as more than a technical breach. There is no evidence of the upstairs unit being in breach of the Building Act 2004 or other related statutes or regulations. One of the purposes of the Building Act 2004 is to ensure people who use a building can escape from the building if it is on fire. While the tenant raised concerns regarding fire escape, I have no evidence of any building failure here.
The upstairs unit was intended for residential occupation but the consented use for this was tied (ancillary) to the downstairs unit.
In Tenant v Krankenberg & Anor [2021] 4298196, 4294929 the Tribunal summarised the factors relevant to awarding compensation under s 78A(4) as follows: a.The landlord’s motivation for renting the property, and their conduct during the tenancy. b.The tenant’s 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.Any other breaches by the landlord. g.Any detriment or loss the tenant suffered. h.The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. i.The public interest in discouraging unlawful tenancies. j.Any other compensation or exemplary damages that are ordered.
I have considered the above factors as they apply in this instance. I do not find that the tenant has established grounds for any compensation orders under s 78A RTA.

Should other compensation be awarded?

Section 77(2)(n) RTA allows the Tribunal to grant general damages where a landlord or a tenant has breached a provision of the RTA. These damages can include an amount for distress and pain and suffering.
The tenant sought compensation, citing in his application: The unit was filthy when I moved in (see inspection report). No hot water in the kitchen until last 2 weeks of tenancy. Shower heating box was faulty, limited hot water in bathroom basin sink. No noise insulation between me and the HRV business office downstairs. Fibre box was not installed in my unit, no access to my modem as it had to be plugged into the HRV office, which was locked.The fire alarm was faulty and went off at random times, sometimes late at night. This was concerning as there was no fire escape. The rental did not have the amenities that were advertised I am seeking compensation for breach of peace, comfort and safety.
In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 and upheld in the District Court decision of Birch v Otautahi Community Housing Trust, (CIV - 2018-009-002094 [2020] NZDC 17667 at paragraph [36]), it set out the factors that the Tribunal should take into account when making a damages award. These are: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
The tenant neglected to initially advise of two compensation sums already offered by the landlord, accepted and paid. The first was $200.00 towards cleaning costs at the commencement. The second was $200.00 for the four- week lack of hot water in the kitchen.
The landlord stated the first payment was more as a goodwill gesture as they did not consider there to be a problem. There is no evidence to support the claim of the tenant that the premises were “filthy” and no grounds for any further compensation for this claim are established.
The hot water supply to the kitchen was accepted as an issue and addressed by the prior compensation. Again, I consider that compensation to be reasonable and accepted. No grounds for any further compensation have been established.
I have no evidence of a fault in the instant hot water supply to the shower/bathroom and make no orders.
The internet fibre box had been installed during a previous tenancy. The reason it was located in the downstairs unit is unknown. Logically it should have been accessible at all times to the tenant and installed upstairs. That said, the connection did not require any physical reboot during the tenancy and no real impact on the tenant resulted.
The letter box for the upstairs unit had been previously installed by the owner and a key provided to the tenant at that time. For reasons unknown, the downstairs commercial tenant now had the key and the tenant was advised the letterbox was shared. The tenant did not have a key. The tenant did not request a key, nor advise the landlord of this potential problem. He also stated he left his parent’s address as his default mailing address, so no direct mail was expected during this tenancy.
The fire alarm was in a common area and went off twice during the tenancy. It is not established if either time it alarmed this was due to a fault rather than a false alarm. I do not consider two alarms from a multi-dwelling complex common area such as here to be an unacceptable failure of the landlord that should attract compensation.
Noise from the downstairs unit, neighbouring workshops, as well as from a nearby function venue, were raised by the tenant. Such possibilities might have been reasonable foreseen during the tenant’s pre-tenancy inspections. The release, without cost, from the fixed-term tenancy by the landlord was a decent gesture from the landlord. It is not likely a similar outcome would have come if an application for such a reduction per s 66 RTA had been sought.
I find no other grounds for compensation have been established by the tenant. Conclusion
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
The landlord agreed to an early release. As noted earlier, any compulsion for this was not apparent based on the circumstances established.
I consider the tenant has already been reasonably compensated for accepted issues that arose. The other issues raised by the tenant have not been proven or, if proven, fail to be of such an impact, or should have been so reasonably foreseeable, that the limited nature, duration and effect were such that no further compensation should be ordered.
Therefore, the application is dismissed.

Tenancy Tribunal case 4939638 — Cleanliness at Unit/Flat Unit 4, 1 Koru Place, Stoke, Nelson 7011

At a glance

Tenancy Tribunal case 4939638 — Cleanliness at Unit/Flat Unit 4, 1 Koru Place, Stoke, Nelson 7011

At a glance

Claims & awards

Order

Reasons

Was the premises unlawful?

Should other compensation be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was the premises unlawful?

Should other compensation be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions