What was the outcome of Tenancy Tribunal case 4992988?

The tribunal order states: By way of declaration, these premises are unlawful residential premises;

How much money was awarded in case 4992988?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4992988?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4992988?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11512484-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4992988?

The tribunal order states: By way of declaration, these premises are unlawful residential premises;

How much money was awarded in case 4992988?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4992988?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4992988?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11512484-Tenancy_Tribunal_Order.pdf.

11 Dallas Place, New Windsor, Auckland 0600 Tenancy Tribunal Case 4992988 — Rent arrears

Order

By way of declaration, these premises are unlawful residential premises;
The applications are dismissed.

Reasons

Both parties attended the hearing. The landlord attended in person, the tenant by telephone. The applications
The landlord seeks an Order for payment of rent arrears and compensation. During the hearing the compensation claims were reduced to those for hire of a skip bin to remove the tenant’s belongings and for payments made for labour to fill the skip. Background
The sleepout is a converted stand alone garage, separate from the main dwelling where the landlord lives. It has a ranch slider door where the main garage door used to be and a side door. It comprises one room with the tenant’s bed, fridge and belongings. A separate room contains a toilet, shower and handbasin. There are no cooking or laundry facilities. The sleepout has no separate address, services (rubbish bins/ recycling etc). The tenant says that a fibre connection was enabled by running a spare cable from his parents’ property next door.
The landlord says that he was approached by the tenant’s parents, who live next door, about whether their son, the tenant, could move into his sleepout. The landlord says his understanding was that the tenant would eat with his parents but sleep in the sleepout – almost as if the sleepout were an extension of the parent’s property.
The tenant moved in on 19 April 2018. The arrangement was not formalised by a written agreement. The tenant paid the landlord rent of $250.00 per week.
For his part, the tenant says that was not at all how he occupied the premises. He says that he lived there as his home, only visiting his parents’ place a couple of times a week and mostly eating takeaways, because there were no cooking facilities in the premises.
Both parties agree that the arrangement did not include the tenant having use of any facilities in the landlord’s home.
In terms of the landlord’s claims, the tenant acknowledges that there was unpaid rent of $5,520.00 at 14 September 2023, when the landlord says the arrangement ended.
The tenant disputes the landlord’s compensation claims, saying that he had himself arranged a skip bin but while he was still paying rent the landlord hired a bin and labour and had the sleepout emptied of the tenant’s belongings, some of which were of significant financial and personal value. I have noted that it is only the landlord’s claims that are under consideration here, in the absence of any application by the tenant. Is this Dispute within the Tribunal’s Jurisdiction?
The Tribunal has jurisdiction to determine disputes between a landlord and tenant, that relate to a tenancy to which the Residential Tenancies Act (“RTA”) applies (s.77(1) RTA).
Section 2 RTA defines: “Tenancy”, “....in relation to any residential premises, [as] the right to occupy the premises (whether exclusively or otherwise) in consideration for rent”. I find that to be the case here. “Residential Premises” “.....[as] any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.” In considering that definition I accept the evidence of the tenant, who occupied the premises, that it was used as his place of residence.
That being so, I find this to be a residential tenancy under which the parties were landlord and tenant. The Tribunal accordingly has jurisdiction to determine this application.

Were these Lawful Residential Premises?

A previous application filed by the landlord (application number 4527790) was dismissed by the Tribunal on 23 May 2023 after the landlord withdrew his claims. That Order notes: “3.The tenancy is a “sleepout” without kitchen facilities. The tenant goes next door to his parent’s home for his meals.
Given the description of the premises the issue of whether this was a lawful residential premises was raised with the landlord. The landlord was not aware of whether it was lawful and did not wish to take the option of enquiring with Auckland Council.
Rather than seek an adjournment and obtain evidence to establish that it was a lawful residential premises the landlord sought to withdraw the claim.”
With this application, the Landlord has provided evidence of a building consent that was not available to the Tribunal at the earlier hearing. That building consent approves, “Covert Garage into sleepout, replace some existing windows, add ranch slider and one in bedroom, update bathroom kitchen and laundry excavate area behind garage for storage.”
Plans are attached to the building consent.
What that shows is that conversion of the garage to a sleepout was done in accordance with the Building Act 2004. It does not however show whether or not the sleepout comprised lawful premises for the purposes of the RTA.
Section s.78A(2) RTA provides: “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—(a) that 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); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.”
The lack of facilities provided in the sleepout, means that it did not meet the requirements of the Building Code for dwellings.
The Tribunal’s decision in in applications 4209883/ 4320590 1 contains a helpful review of the kinds of situations where the lawfulness of rented premises has been considered. One of the categories identified, of relevance here, is 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.”
The garage was converted to a sleepout under a building consent issued in 2012. The provisions of the Building Act 2004 apply.
The decision cited above notes, “Building consent is required for a “change of use” of an existing building. For instance, a cabin may be a sleep-out (for which there is a building consent), but if washing and cooking facilities are added, there is a change of use of the sleep-out. The Building Act 2004 provides a process relating to change of use. Section 114 provides: 114 Owner must give notice of change of use, extension of life, or subdivision of buildings. Section 115 of the Building Act 2004 provides: 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.”
The Tribunal’s decision in Abaid v Mounsouphom 2 involved premises where, as in this case: “The conversion of the garage into a family room is noted on the Code Compliance Certificate issued by Auckland Council....... The unit is fully detached from the main house/dwelling which the landlord ..... Resides...... The unit has an attached toilet and shower.”
The Tribunal in Abaid (above) found that the converted garage under consideration in that case comprised unlawful residential premises for reasons including: a. absence of consent for the change of use to a separate residence; and b. lack of necessary cooking/ washing facilities; 1 Landlord v Tenant [2022] NZTT [Event location suppressed] 4209883, 4320590 2 Abaid v Mounsouphom [2019] NZTT Manukau 4181975 those factors apply equally here.
It is also the case here, as in Abuid, that, “...the landlord has not taken reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the unit for residential purposes and has not complied with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. The landlord therefore failed to comply with the landlord’s obligations under section 36 and 45(1)(c) of the Act and the landlord’s failure has caused the occupation by [the tenant] to be unlawful and the landlord has contributed to that unlawful occupation.”
I therefore find these to be unlawful residential premises.
Because I have been found these to be unlawful premises, I must consider application of s.78A(3) which provides: “Despite anything to the contrary elsewhere in this Act,— (a) unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i) any sum found to be owing by way of rent in arrear; or (ii) any other sum by way of damages or compensation”
The public policy behind the introduction of s 78A was to discourage landlords from renting out properties that were, for example, unconsented or unlawful and had therefore never been subject to the need to meet legal requirements to ensure their safe and healthy occupation by tenants. In moving that the bill relating to s 78A be read a first time in Parliament, the Hon Dr Nick Smith stated: “.. There have been examples around the country of garages or other properties that are being rented out that do not go anywhere near meeting the requirements of the Residential Tenancies Act but where there are limitations on our new compliance teams being able to enforce them because of that jurisdiction issue. My view is that the amendments in this bill that make it plain that the tribunal has full jurisdiction over unlawful residential premises will strengthen the regulatory environment and ensure that those people who attempt to rent out such properties are held accountable.”
This is not a case where the premises were adequate, healthy and safe for residential occupation but were not lawfully able to be occupied for “technical” compliance reasons. This was a converted garage never consented or suitable for use as a residential premises.
That being so I do not consider that there are special circumstances here that would make it unjust to apply s.78A(3), by declining to order payment of rent arrears or compensation.
It follows that the landlord’s claims must be dismissed

Tenancy Tribunal case 4992988 — Rent arrears at 11 Dallas Place, New Windsor, Auckland 0600

At a glance

Tenancy Tribunal case 4992988 — Rent arrears at 11 Dallas Place, New Windsor, Auckland 0600

At a glance

Claims & awards

Order

Reasons

Were these Lawful Residential Premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Were these Lawful Residential Premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions