What was Tenancy Tribunal case 4981808 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4981808?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4981808?

The primary dispute was Healthy homes. Related themes: Property damage, Mould & damp.

Where can I read the official tribunal order for case 4981808?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11690341-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4981808 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4981808?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4981808?

The primary dispute was Healthy homes. Related themes: Property damage, Mould & damp.

Where can I read the official tribunal order for case 4981808?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11690341-Tribunal_Order_Redacted.pdf.

274 Forest Hill Road, Waiatarua, Auckland 0612 Tenancy Tribunal Case 4981808 — Healthy homes

Order

The tenants’ names and identifying details must not be published.
Thomas Needham and Nola Hazelwood must immediately pay [the tenants] $6,105.145.14, calculated as set out in the table below.
The claims are allowed as set out in this decision. All other claims are dismissed. DescriptionTenant HHS ventilation standard breach: loss of amenity$3,977.14 Nominal damages for TA contents being deficient $250.00 Rent reduction for unlawful premises$1,500.00 Compensation for interference with reasonable peace$29.00 Council file fee$72.00 Nominal damages for property loss due to mould$250.00 Filing fee reimbursement$27.00 Total award$6,105.14

Reasons

The tenants attended the hearing in person.
Sholeh Ashraf and Callum McLean of McLean Law Limited appeared for the landlords. The landlords also attended.
The tenants claim: a. The landlords failed to comply with the Healthy Homes Standards (HHS) standard for ventilation for the premises. 2 b. The landlords breached their tenancy agreement duties by failing to include HHS information. 3 c. The landlords interfered with the tenants’ reasonable peace, comfort, or privacy. 4 d. The landlords unlawfully entered the premises. 5 e. The landlords failed to maintain the premises. 6 f.That the premises were unlawful premises. 7
For remedy, the tenants seek orders for compensation, rent reduction, exemplary damages, and costs. Background
The landlords bought their property in January 2014.
The property has a large section and includes the main house and the premises’ unit.
The premises’ unit began life as a double garage. About 25 years ago, the previous owners converted the garage to a living space. 1 I heard this matter at the Waitakere District Court on 2 April 2025. The matter had been set down for 4 April 2025 also, but the additional hearing day was not required. 2 Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“The Regulations”), regs 21- 24. 3 Residential Tenancies Act 1986 (RTA), s 13A(1CA). 4 RTA, s 38(2). 5 RTA, s 48. 6 RTA, s 45(1)(b). 7 RTA, s 78A.
Mr Needham says the unit was “sold to us as a sleepout”. However, Mr Needham and Ms Hazelwood upgraded the unit, and they now refer to the unit as “The Cottage”. I intend to use the neutral term, “the unit” in this decision.
Mr Needham says the real estate agent who sold him and Ms Hazelwood the property, told them that one of the previous owner’s mother’s lived in the unit for about 20 years.
The previous owners’ work on the unit was unconsented. The Council LIM report states: Auckland Council is aware of unauthorised works ...1.The Garage has been altered to form a household unit. 2. The basement area has been altered to form a household unit....No further action is required unless works become unsafe or unsanitary.
The tenancy began on 9 April 2022 and ended on 2 July 2024.
The tenants say when they found the unit they were wanting a healthy home within their budget and to have a good relationship with their landlord. One of the tenants was a full-time student and the other was working fulltime.
The landlords say they were aware there was shortage of housing in the area. They wanted to help people find a pleasant affordable place to live. They thought the tenants were a lovely couple and were happy to offer them the unit as pleasant, healthy home with rent set at a good price. Despite the lack of consents, the landlords were confident that the unit was a healthy home: so much so, they had previously housed an older relative in the unit for 18 months previously after renovating it especially for her.
The landlords knew the unit was unconsented and told the tenants that they might have to move out at short notice as a result.
The landlords say they are inexperienced as landlords. They had only had two formal tenancies prior to this one.
There was an informal one-page tenancy agreement that cheerfully (the tenancy agreement included a joke about saving water by showering with a friend) set out the basic terms of the tenancy such as the weekly rent and notice periods for termination. Mr Needham described the agreement as a “handshake agreement”.
The landlords were lived in part of the main house for much of the tenancy, after having to return from intended three-to-four years of travel because of the Auckland Anniversary/Cyclone Gabrielle rain events.
The parties were on generally good terms. The landlords and tenants socialised sometimes. The landlords say they supported and helped the tenants when they could. For example, they offered to drop them off to the airport, let them use the main house’s laundry facilities, and endeavoured to promptly fix any issues with the unit. The landlords emphasise that they had no intention of harm – quite the opposite.
During the tenancy the landlords permitted some acquaintances who had struck hard times live in a caravan on the unit’s lawn. The tenants felt intruded upon by people suddenly living so close to them. The landlords asked their friends to move their caravan further away, and it was then resituated about 20m from the unit.
The tenancy lasted for over two years. The tenants got married during the tenancy. They became pregnant towards the end of the tenancy.
The tenants say they moved out in June of 2024 because of unit’s problems, and in particular the mould problems. They struggled with the damp and mould and found their living circumstances were affecting their mental wellbeing.

Did the landlords fail to comply with the HHS ventilation standard?

The tenants claim the premises did not have adequate ventilation. Legal principles
Under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), landlords must comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) include ventilation standards.
Compliance dates for the HHS vary depending on the type of tenancy and when the tenancy commenced: a. For private rentals: i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. Regulation 23(1) provides: 23 Mechanical ventilation standard for kitchens and bathrooms (1) Each kitchen and bathroom in the premises must have installed in it— (a) an extractor fan; or (b) qualifying ventilation.
The ventilation standard also sets out minimum expectations around windows and doors. Bedrooms 8 must have at least one window that opens to the outdoors. Regulation 21 provides that: 21 Openable windows or external doors (1) Each habitable space in the premises must have 1 or more qualifying windows or doors.
That bedrooms must have openable windows is a longstanding minimum building requirement. For instance, reg 11(3) of the Housing Improvement Regulations 1947 provides: (2) The windows of each habitable room shall be so constructed that windows with an area amounting to not less than one-twentieth part of the area of the floor of the room can be opened for the admission of air. The landlords accept liability
The landlords accept that they breached the HHS standards for ventilation.
The breach having been accepted, the Tribunal must consider what, if any, remedies to order.

Should compensation be ordered for loss of amenity?

The tenants say that they found the premises cold and damp. 8 Bedrooms are habitable spaces. The Regulations define habitable space as follows” “habitable space means a domestic living space excluding any bathroom, laundry, toilet, pantry, walk-in wardrobe, corridor, hallway, lobby, clothes-drying room, or other space of a specialised nature occupied neither frequently nor for extended periods”.
The landlords were entirely confident that the premises was safe and healthy. In about 2014, they had lodged their own elderly family member in the unit after carrying out improvements that involved a lot of work and a cost of about $22,000.00. Their relative had lived there happily for about 18 months without any issues.
However, a sole older person would not have created as much moisture in their use of the premises as an active young couple. It is plausible the landlords’ relative did not experience the mould and damp problems the tenants complain of partly because they would naturally have generated less moisture through cooking, from perspiration, and so on.
Moreover, from the beginning of the tenancy until February of 2023 (when it was discovered and repaired) the shower outlet had been leaking, adding to moist conditions in the bathroom, bedroom wardrobe, and storeroom. The heavy rains in early 2023 would also have exacerbated damp.
It is instructive to consider the details of the premises ventilation deficiencies. The kitchen did not have an extractor fan. It had a window on one wall and the adjacent dining room had a sliding door, but both the window and the door were on the “southern” 9 wall. There were no eastern, western, or northern windows. Therefore, it is likely that the air flow through the kitchen was poor.
The bathroom did not have an extractor fan. It had a ceiling flue to the roof and an openable window. It is likely some airflow could be established if the window was opened, but the airflow would have been greater had the flue had an extractor fan.
The bedroom had no openable window. The tenants have not raised this issue in their claim, but it is longstanding building requirement that bedrooms have openable windows. When two people share a bedroom, their body perspiration is liable to lead to high levels of humidity if there is not adequate ventilation.
The landlords supplied a desk fan, which the tenants used in the kitchen and a heat pump in the bedroom, 10 which could have assisted ventilation by blowing air about. However, these measures were not a sufficient substitute for properly installed extractor fans and an openable window for the bedroom.
The landlords say the tenants failed to properly ventilate the premises. They allege the tenants seldom opened the windows. The tenants deny that they 9 Actually, the south-eastern wall. I use compass-directions based on the plans the parties submitted (Exhibits 1 and A), with south being the bottom of the diagrams. 10 Under reg 9 of The Regulations, the landlords were required to have a qualifying heater (such as a heat pump of suitable capacity) installed in the living room. failed to adequately ventilate the premises. They say, “We used own dehumidifier and fan to remove smoke from cooking and during shower. Opened windows to prevent building up mould.” The tenants do, however, accept they sometimes used a washer-dryer in the storeroom. The machine was not vented to the outside as it ideally should have been. The tenants also hung laundry to dry inside on occasions, which cannot have helped.
I am not persuaded that the tenants did not ventilate the premises. Proof of that would require evidence such as persistent surveillance and records of observations confirming the windows were always shut, or a concession from the tenants.
The tenants did, however, contribute to damp in the house by sometimes doing laundry in the house.
The lack of extractor fans in the most moisture producing parts of the house - the kitchen and the bathroom - would inevitably have contributed to moisture build up in the unit. The lack of an openable window in the bedroom was also a fundamental omission, absent which the level of moisture must have been significantly greater than if the premises had complied with the standard.
The set-out of the house and the positioning of the windows was such that creating airflow by would have been difficult. The ventilation breaches would have compounded that.
The tenants say they used their dehumidifier the whole day, but the unit’s air was still laden with moisture and their belongings got mouldy wherever they were stored. They were constantly having to clean the mould in the bathroom and other rooms.
I am satisfied on the balance of probabilities that the landlords’ failure to comply with the ventilation standard significantly affected the tenants’ amenity in the premises. Simply put, the premises’ poor ventilation was a material factor in the premises being excessively damp and therefore overly prone to mould.
The tenants amenity in the premises was significantly reduced by having to live in a poorly ventilated premises.
I quantify the tenants’ loss of amenity at 10 per cent of the weekly rent.
Because the landlords had 90 days under the HHS to comply with the ventilation standard, the starting date for calculating compensation is 7 August 2022, and the end date is the end of the tenancy.
The compensation order shall be for $3,977.14.

Compensation for damage to property?

The tenants submit that many of their belongings were ruined by mould.
Some of the items had largely sentimental value such as a cache of feathers that were a present from one tenant’s father and the couple’s wedding mat.
I accept that some items were damaged by mould due to the poor ventilation at the premises. However, the value of the items has not been established. The main cost is the loss of items of a sentimental nature.
To acknowledge the loss, the Tribunal will order of nominal damages in the sum of $250.00.

Exemplary damages?

Breaching the standard is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
Before the Tribunal can order exemplary damages, it must first be “satisfied that the person against whom the order is sought committed the unlawful act intentionally”. 11
The breaches in this case are omissions of legal duties. For the Tribunal to be satisfied that the landlords’ intentionally omitted meeting the standards, it would have to find that the landlords were aware of the relevant duty.
The landlords say they only began renting properties the last few years. The arrangements were done based on good will and a handshake. They say they were unaware of the ventilation standard. I found the landlords straightforward and sincere. Their evidence was consistent with the proven facts. I accept their evidence. I am not satisfied that the landlords’ committed the unlawful act intentionally.
It follows, exemplary damages are not an available remedy.

General damages?

The tenants claimed for emotional harm. However, I am not satisfied that the landlords’ breaches caused the tenants significant emotional harm. That is not to say that the tenants did not experience adverse mental consequences, but 11 RTA, s 109(3). general damages are sparingly used where the emotional harm is significant and supported by cogent evidence such as medical evidence proving the connection between the breach and the emotional harm.

Did the landlords fail to include HHS information in the tenancy agreement?

The landlords tenancy agreement failed to include HHS information as required by s 13A(1CA), which provides: (1CA) The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. 12
Exemplary damages are not available because the tenants’ application was made more than 12 months after the date the landlords committed. the unlawful act. 13
I consider nominal damages should be ordered to acknowledge the breach, however. If the landlord had attended to their basic tenancy agreement obligations, they would have been informed of their HHS duties and their other obligations, and the breaches may never have occurred.
The Tribunal orders the landlords to pay the tenants $250.00 in nominal damages. 14 Did the landlords interfere with the tenants’ quiet enjoyment?
On 25 May 2024, the landlords did maintenance work on the unit’s roof. The tenants were at home that day and were disturbed by the noise and landlords’ presence on the roof. 12 RTA, s 13A(1F)(a), Schedule 1A. 13 RTA, s 109(2)(b). 14 See Peter Blanchard, Civil Remedies in New Zealand (2nd ed, 2011): Westlaw electronic resources at 1.6.10.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 15
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. 16
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person": MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The roof work amounted to an interference with the tenants’ reasonable peace and privacy in their use of the premises.
The interference falls well below the standard of harassment, however. Exemplary damages are therefore unavailable.
I consider 50 per cent of the daily rent is an appropriate sum to compensate the tenants for the interference.
It follows, the Tribunal orders the landlords to compensate the tenants in the sum of $29.00.

Did the landlords unlawfully enter the premises?

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. 17
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. 18
The landlords deny ever entering the premises without the tenants’ consent. Mr Needham accepts he would “tap” on the tenants door to ask for access to his tools in the roof space, for example. However, he insists it would be completely against his nature to intrude into the tenants’ home against their wishes.
The tenants did not have any cogent evidence that the landlords entered the premises unlawfully.
The allegation is not proven on the balance of probabilities. 15 RTA, s 38(2). 16 RTA, s 38(3), Schedule 1A. 17 Residential Tenancies Act 1986 (RTA), s 48(1) and (2). 18 RTA, s 48 (4)(a) and Schedule 1A.
This claim is dismissed.

Did the landlords fail to maintain the premises?

The tenants claim that the landlord failed to maintain the storeroom and the attic space storage area. The storeroom suffered from mould due to a shower outlet leak and the attic area go infested with rats. Legal principles
Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...
Breaching any of these s 45 obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 19
In respect to the obligation to repair, landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 20 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 21 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Landlords also have an obligation to repair things that are apparent from observation: 22 19 Residential Tenancies Act (RTA), s 45(1A) and Schedule 1A. 20 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 21 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 22 See n 3. However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
The landlords repaired the shower outlet leak within a reasonable period of time. They therefore did not breach their repair obligations.
The roof storage area was in the unit’s ceiling cavity. Rats could get into the ceiling cavity. The landlords provided rat bait, but that did not stop the rats.
The roof area was not intended to be a place to store precious or fragile items. I am not satisfied that the landlords breached their duty to maintain the premises because the nature of the area was such that rats could inevitably enter the area.

Were the premises unlawful premises?

The unit had not resource or building consents.
Council’s LIM records confirm the unit was unconsented.
The landlords accept that the prem is 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: o 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 o 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. 23 Rent reduction: legal principles
Where the Tribunal finds premises are unlawful residential premises under s 78A(4) of the RTA, it 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.
The Court of Appeal in Parbhu 24 disparaged a sledgehammer response of a full rent reduction in response to “relatively footling” breaches: The effect of relying on that provision is that any relatively footling breach by a landlord (for instance, the incomplete planning or building consenting of an otherwise eminently safe and sound accessory unit)...would compel total restitution of rent paid regardless of the degree of benefit.
Consistently with these comments in Parbhu, any rent repayment the Tribunal orders should be proportionate to the seriousness of the breach. At the more serious end of the scale are premises that are virtual hovels, such as an unconsented converted garage that leaks and is infested by vermin. At the other end of the scale where there is a minor building consent irregularity, but the premises are “eminently safe and sound” a full rent reduction is not called for.
Recent District Court cases illustrate the approach that should be taken. In Chen v Kumar 25 the premises had been consented for use as a rest home (upstairs) and a residence for the past owner and family (downstairs). Originally, the rest home and residency were not physically divided, but before the tenancy began someone blocked access between the upstairs and downstairs to create two separate residential units. The landlord, Mr Chen, was convinced that he could lawfully rent the downstairs premises out. The Tribunal found however, the premises were unlawful and ordered about 30 per cent of the rent be returned to the tenant, which amounted to $45,000.00.
In the District Court, Judge DJ Clark agreed with the Tribunal that the premises were unlawful. However, he considered that on the facts as he found them, the 23 RTA, s 78A(4)(a). 24 Want v Parbhu & Patel as Trustees of the Impala Trust [2019] NZCA 674 at [31]. 25 Chen v Kumar [2022] NZDC 7783. rent reduction must be drastically reduced. Importantly, Mr Kumar very much wanted to stay in the premises and the premises were not “unsafe”: [95] Furthermore, Mr Kumar and his family enjoyed the occupancy of a premises and received the full benefit of those premises throughout the course of the tenancy. He wanted the tenancy to continue. I do not accept then the unit is necessarily “unsafe” given Mr Kumar’s enjoyment of the same. Arguably it falls into the category contemplated by the Court of Appeal as being technically in breach of planning or consenting obligations but otherwise could be safe. Certainly, until February 2021 Mr Kumar thought so as he wanted to remain there. [96] The Tribunal ordered Anemax (and now the landlord through my order) to pay Mr Kumar the sum of $45,000 (being a 30% reduction on the total rent paid). For the reasons set out I quash that order given that I find Mr Kumar had the full benefit of the premises during the tenancy, which including a discount during the period of construction.
His Honour reduced the rent to be refunded to $2,000.00. That amount also took account of rent arrears of $3,165.71 (which the Tribunal had also declined to order). The District Court rent reduction of $2,000.00 amounts to about 3 per cent of the total rent paid. 26 If the $3,165.71 arrears are factored in the reduction is about 7.5 percent. 27
In Kemp v Elliot 28 the premises’ passed its final inspection which found the build to have been completed fully with the building consent. The final inspection report recorded that Council should issue the CCC upon the landlord paying the appropriate application fee.
Kemp was therefore the factual exemplar of “the incomplete planning or building consenting of an otherwise eminently safe and sound accessory unit”.
The Tribunal had ordered 30 per cent rent reduction (based on findings of fact that the District Court did not adopt), which resulted in a refund rounded up to $20,000.00. 29 However, Judge D J Clark quashed the Tribunal’s order and substituted an order for a rent reduction of $2,000.00. That figure amounts to a rent refund of about 3 per cent.
In Johnson v Clement 30 Judge D J Clark heard an appeal involving a granny flat. The Tribunal found the premises became unlawful premises only after the landlord moved away from the main house so that the RTA s 5(1)(n) exclusion 26 The rent due to 9 March was $66,874.29. 27 The rent due to the end of the tenancy was $68,445.71. 28 [2022] NZDC 17792. 29 The total rent due to the end of the tenancy was $63,607.14. 30 [2022] NZDC 2085. ceased to apply. The Tribunal ordered a rent reduction at the rate of $25.00 per week. The weekly rate was modest, but the total amount ordered for rent reduction was $10,500.00 because the tenancy had lasted 12 years.
His Honour found that the breach leading to the unlawfulness was technical. He relevantly for this decision, observed at [38] and [48] of his decision: [38] I agreed with the Tribunal the premises were unlawful premises, 15 however I held the Kumar’s were provided with premises which were otherwise safe and sanitary, and compliant in terms of healthy homes standards. On that basis, I found “special circumstances” existed justifying a reduction in the refund of rental which was ordered to be paid by the Tribunal. I reduced the refund of rent from an award of$45,000 down to an award of $2,000, the $2,000 reflecting the breach of s 78A of the RTA in the circumstances of that case. ... [42] The reason why these premises were “unlawful” was because Mr Johnson was no longer entitled to claim the premises were exempt under s 5(1)(n). That is a breach of the Act but is technical. The purpose of s 78A is to prevent landlords from offering premises which fail to meet the statutory and regulatory thresholds of safe and sanitary housing. However, a balance needs to be applied between premises which are safe and sanitary but are unlawful because of a technical breach. Each case will need to be determined on its own merits because clearly there will be many instances where premises will be unlawful because they are not safe and sanitary.
His Honour found that the breach was similar to Kemp v Elliot and that the Tribunal’s refund of rent should be reduced to the sum of $2,000. 31 Discussion
I must carefully weigh what amount of rent it is fair to deduct. The RTA does not specify the “special circumstances of the case” I must have regard to except for “the nature of the premises”.
Other special circumstances that are relevant in this case are: 32 a. The parties’ knowledge of the breach and reasons for entering the tenancy. b. The tenant’s reasons for bringing the claim. c. The benefits the parties received. 31 At [44]. 32 See Janet Robertshawe’s 2019 conference paper, The Legacy of Anderson v FM Custodians: Section 78A Tenancies. d. The seriousness of the regulatory breaches making the premises unlawful. e. Other orders the Tribunal will make. f.The detriment the tenants suffered. g. The purposes of discouraging tenancies of unlawful premises and ensuring landlords do not unfairly profit from unlawful premises. The nature of the premises
The premises were generally sound but did not comply with the HHS. The main problem was that the premises’ was poorly ventilated. If a building consent or a sanitary and safety compliance certificate had been sought, Council would likely have required the bedroom to have had an openable window at the lease. The parties reasons for entering the tenancy and their knowledge of the breach
The landlords’ principal motive for renting the premises was to support others in the community. They charged rent, so there was also a benefit to them of receiving rental income. They thought the premises was perfect safe and healthy.
The rent the landlords charges was about the market rate for a one-bedroom unit in the lower quartile. Rent was not set at an exploitive level.
The tenants wanted a safe and healthy place to live and to have a good relationship with the landlords.
The landlords knew the premises was unconsented.
The tenants became aware sometime near the beginning of the tenancy that the premises was unconsented. The tenants’ reasons for bringing the claim
The tenants brought the claim for genuine reasons because of the ventilation issues, the damage to their property, and their negative experiences at the premises. The benefits the parties received from the tenancy
The tenants had the benefit of a premises that was largely habitable and safe, but it was not as healthy and comfortable as it should have been.
The tenants enjoyed a generally good relationship with the landlords who, in my view, caring and pleasant people.
The landlords succeeded in renting the premises to tenants who needed somewhere to live.
They also received rent at the rate of $400.00 per week. The seriousness of the breaches underlying the unlawfulness
The non-compliance meant the premises was less comfortable and less safe than it should have been.
Substantial building work would have been required for the premises to comply with the Building Code and the Building Act. The tenant’s detriment
The tenants experiences less healthy, safe, and pleasant conditions than they ought to have.
They endured the mould issues discussed above.
They likely spent more on power for heating and dehumidifying the premises than they ought to have.
They incurred upsetting property damage and loss because of the ventilation issues which were exacerbated by the bedroom not having a window as any building consent would have required. Other orders
The Tribunal is ordering compensation for loss of amenity for breach of the HHS assessed at ten percent of the rent (from 90 days after the tenancy commenced), and nominal damages for the landlord’s other breaches.
The rent reduction ordered must take those orders into account so that the totality of the order does not become excessive. The Tribunal often uses a percentage of the weekly rent to quantify the appropriate rent reduction, but the District Court has found that care should be taken to ensure that the reduction does not become disproportionately high simply because a tenancy’s duration is longer than another similarly unlawful tenancy. 33 Unfair profit and the public interest
Section 78A addresses a concern that landlords do not unfairly profit from unlawful premises and there is a public interest in discouraging tenancies of unlawful premises.
This calls for the rent reduction to be set at a level that deters and landlords from running the risk of renting out unlawful premises by depriving them of any unfair rental profit. Conclusion
I conclude the landlords should repay the tenants $1,500.00 of the rent they paid.
I have double-checked whether that outcome is fair: I have stood back and reconsidered the factors discussed above against the final figure I have arrived at. The outcome is fair. Filing fee
The landlords must reimburse the tenants for the filing fee. Non-publication
The tenants seek an order for 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 33 For example, in Harding v Caroto [2023] NZDC 4981 at [45]. interest or is justified because of the party’s conduct or any other circumstances of the case. 34
The tenants substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Non-publication is ordered.

Tenancy Tribunal case 4981808 — Healthy homes at 274 Forest Hill Road, Waiatarua, Auckland 0612

Tenancy Tribunal case 4981808 — Healthy homes at 274 Forest Hill Road, Waiatarua, Auckland 0612

Order

Reasons

Did the landlords fail to comply with the HHS ventilation standard?

Should compensation be ordered for loss of amenity?

Compensation for damage to property?

Exemplary damages?

General damages?

Did the landlords fail to include HHS information in the tenancy agreement?

Did the landlords unlawfully enter the premises?

Did the landlords fail to maintain the premises?

Were the premises unlawful premises?

Order

Reasons

Did the landlords fail to comply with the HHS ventilation standard?

Should compensation be ordered for loss of amenity?

Compensation for damage to property?

Exemplary damages?

General damages?

Did the landlords fail to include HHS information in the tenancy agreement?

Did the landlords unlawfully enter the premises?

Did the landlords fail to maintain the premises?

Were the premises unlawful premises?