What was Tenancy Tribunal case 5081970 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5081970?

Compensation: Breach section 13(2)(b…: $500.00 awarded to tenant; Compensation: Breach section 38 – qu…: $1,600.00 awarded to tenant; Compensation: Breach section 63(1) –…: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Into Possession Of The Premises With…: $1,500.00 awarded to tenant; Provide Tenant With A Copy Of The Te…: $800.00 awarded to tenant; Rent Arrears: $2,400.00 awarded to landlord

What type of tenancy dispute was case 5081970?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5081970?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11508981-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5081970 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5081970?

Compensation: Breach section 13(2)(b…: $500.00 awarded to tenant; Compensation: Breach section 38 – qu…: $1,600.00 awarded to tenant; Compensation: Breach section 63(1) –…: $1,500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Into Possession Of The Premises With…: $1,500.00 awarded to tenant; Provide Tenant With A Copy Of The Te…: $800.00 awarded to tenant; Rent Arrears: $2,400.00 awarded to landlord

What type of tenancy dispute was case 5081970?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5081970?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11508981-Tribunal_Order_Redacted.pdf.

19A Bledisloe Street, Papatoetoe, Auckland 2104 Tenancy Tribunal Case 5081970 — Rent arrears

Claims and awards in Tenancy Tribunal application 5081970 — net $3,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$2,400.00		Rent arrears
Compensation: Breach section 13(2)(b) – failure to		$500.00	Breach section 13(2)(b) – failure to
provide tenant with a copy of the tenancy agreement		$800.00	provide tenant with a copy of the tenancy agreement
Compensation: Breach section 38 – quiet enjoyment		$1,600.00	Breach section 38 – quiet enjoyment
Compensation: Breach section 63(1) – landlord entering		$1,500.00	Breach section 63(1) – landlord entering
into possession of the premises without consent of the		$1,500.00	into possession of the premises without consent of the
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$2,400.00	$5,927.00
Net award		$3,527.00
Total payable by Landlord to Tenant		$3,527.00

Claims and awards in Tenancy Tribunal application 5081970 — net $3,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$2,400.00		Rent arrears
Compensation: Breach section 13(2)(b) – failure to		$500.00	Breach section 13(2)(b) – failure to
provide tenant with a copy of the tenancy agreement		$800.00	provide tenant with a copy of the tenancy agreement
Compensation: Breach section 38 – quiet enjoyment		$1,600.00	Breach section 38 – quiet enjoyment
Compensation: Breach section 63(1) – landlord entering		$1,500.00	Breach section 63(1) – landlord entering
into possession of the premises without consent of the		$1,500.00	into possession of the premises without consent of the
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$2,400.00	$5,927.00
Net award		$3,527.00
Total payable by Landlord to Tenant		$3,527.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Shalend Kumar must pay [The tenant/s] $3,527.00 immediately, calculated as shown in the table below.
Sarika Prasad is added as a landlord party to these proceedings.

Reasons

Both parties attended the hearing on 3 February 2025.
The tenant claims the landlord has breached their obligations and seeks compensation. The tenant also seeks a declaration that this was an unlawful residential premises.
The landlord filed an application for rent arrears and outgoings.
Each party must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that it is for the party bringing the application to establish that what they are claiming is more likely than not. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo c McCarthy (DC) TT233/02, in practical terms this means that: ...[L]ike anyone who brings an application before a Tribunal or 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The hearing was scheduled for half a day but took a full day. A lot of evidence was filed in advance and given at the hearing. Whilst I may not refer to all of it in this decision, the parties can be assured that I have considered it as part of my reasoning.
I discuss some preliminary matters below, before turning to consider the tenant’s claims first and the landlord’s second.

PRELIMINARY MATTERS

Sarika Prasad is a landlord recorded on the tenancy agreement. Ms Prasad is added as a landlord party to these proceedings accordingly. Ms Prasad attended the hearing on 3 February 2025 and made the majority of submissions.
The tenant applied to be represented by a third party, Shane Narayan. The amount in dispute involved more than $6,000.00. Therefore, I granted the tenant’s request under section 93(2)(b) Residential Tenancies Act 1986 (RTA).
The landlord did not apply to be represented.
The tenant confirmed at the hearing that they were seeking compensation for alleged breaches committed by the landlord. No claim for exemplary damages was made.
At the hearing, the landlord sought to advance an application for compensation for damage, which I declined to hear.
Section 91(1) RTA requires the Tribunal to give to each party to the dispute reasonable notice of the time, place and purpose of the hearing to be held in respect of the application. The Tribunal does this by sending out a Notice of Hearing to the parties listing the relevant claims. As the landlord’s written application did not include a claim for damage, this was not included as a claim raised in the Notice of Hearing. Therefore, the tenant had no notice that this would be an issue considered at the hearing.
In a previous order of the Tribunal dated 13 January 2025, the tenant was advised to submit documents from the Council and written correspondence from the Council in support of their claim that this was an unlawful residential premises. The order required any documents to be submitted at least 7 days after the date of the order.
The tenant did not file any documents from the Council in advance of the hearing.
The tenant’s claim that this was an unlawful residential premises was addressed towards the latter part of the hearing. The tenant sought to submit a copy of the resource consent to subdivide 19 Bledisloe St, Papatoetoe, Auckland and create the tenancy address of 19A Bledisloe St, Papatoetoe, Auckland. The file was very large and complex. I gave the parties the option of admitting the evidence but granting an adjournment to allow the landlord some time to review and respond to it or proceeding in the absence of the document. Both parties consented to proceeding in the absence of the document on the basis that the landlord accepted that the garage was converted into a residential dwelling with a kitchenette without Council consent.
I did not consider the resource consent file as part of the evidence in this case. TENANT’S CLAIMS Failure to provide a copy of the tenancy agreement
Section 13(2)(b) RTA requires a landlord to provide a copy of the tenancy agreement to the tenant (whether or not the tenant has signed it) before the tenancy commences.
Both parties accept that the tenancy began before a tenancy agreement was signed.
The tenant gave evidence that they were residing in New Zealand on a work permit at the time. They claim that they required a copy of the tenancy agreement to support their application for residency. The tenant claims they insisted that they wanted a tenancy agreement at the beginning of the tenancy, but the landlord advised them there was no need for one.
The tenant gave evidence that when issues began to arise in relation to the tenancy, a tenancy agreement was prepared and signed on 26 September 2023.
The tenant claims they were never provided with a copy of the tenancy agreement at the time of signing. The tenant gave evidence that they made multiple verbal requests for a copy of the tenancy agreement, but never received it. On 16 October 2024, the tenant sent the landlord a text message requesting a copy of the tenancy agreement. They were provided with a copy on this date.
The tenant claims that not having a copy of the tenancy agreement for so long was a significant inconvenience and frustrated the process of applying for a residency.
The landlord gave evidence that when the tenancy began, the tenant was seeking urgent accommodation after having been evicted from a family member’s house. The landlord claims this urgency was why a tenancy agreement was not signed before the tenancy began.
The landlord gave evidence that when the tenant began to fall behind in their payment of rent, a tenancy agreement was prepared and signed. The landlord agreed to allow the tenant to pay their bond in instalments and gave evidence that the parties agreed that the tenant would be provided with a copy of the tenancy agreement once the bond had been paid.
The landlord denies that there were any verbal requests by the tenant for a copy of the tenancy agreement.
The landlord claims that they did not provide the tenant with a copy of the tenancy agreement, because the tenant did not pay the bond. The landlord gave evidence that they did not believe that they were able to provide the tenant with a copy of the tenancy agreement until the bond had been paid.
I find that the tenancy agreement was not provided to the tenant before the tenancy began or immediately after the tenancy agreement was signed. This is a breach of section 13(2)(b) RTA.
A landlord is able to provide a copy of a tenancy agreement to a tenant even if the bond has not been paid. The fact that the landlord was mistaken about this is no defence for breaching their obligations under section 13(2)(b) RTA.
The tenancy agreement was signed on 26 September 2023 and a copy was not provided to the tenant until 16 October 2024. That is a period of just over one year. I accept the tenant’s evidence that not having a copy of the tenancy agreement caused them stress and inconvenience.
Considering these factors, I order the landlord to pay the tenant $500.00 compensation for breaching section 13(2)(b) RTA. Failure to record a variation to the tenancy agreement in writing and rent increase within 12 months of the tenancy commencing
Section 13B RTA requires every variation of a tenancy agreement, and every renewal of a tenancy agreement to be in writing and signed by both the landlord and tenant.
Section 24(1)(d) RTA prohibits a landlord from increasing rent within 12 months after the date of the commencement of the tenancy.
The tenant claims that at the beginning of the tenancy, rent was $550.00 per week, including expenses. The tenant gave evidence that after approximately one month, the rent increased to $600.00 per week, plus $50.00 per week for expenses. The tenant claims that shortly thereafter, there was another variation requiring expenses to be shared equally amongst the three separate household units.
The landlord gave evidence that the rent was always $600.00 per week. The landlord claims it was always agreed that expenses would be shared equally between the separate household units. The landlord states that this is what is recorded in the tenancy agreement and it reflects the verbal agreement between the parties.
The tenant acknowledges that the tenancy agreement records rent as being $600.00 per week, but states that what played out in practice was different to what was recorded on the tenancy agreement.
The landlord referred to copies of the tenant’s bank statements, which show that the tenant paid $600.00 in rent to the landlord on 23 August 2023. Other payments of rent paid electronically by the tenant show payments of $200.00 per week.
The parties agree that the tenant paid part of the rent in cash and the balance electronically for the majority of the tenancy.
The tenant bears the onus of proving that the tenancy agreement was varied verbally and not in writing, and that rent was increased within 12 months from the beginning of the tenancy.
The tenant is unable to point to any objective evidence to support their claim, which the landlord denies. The terms of the tenancy agreement and one electronic payment of rent made by the tenant for $600.00 on 23 August 2023 support the landlord’s version of events.
In these circumstances, I am not convinced on the balance of probabilities that the tenancy agreement was varied verbally and rent was increased within a 12 month period from the beginning of the tenancy.
These two claims by the tenant are dismissed. No receipt for cash payment of rent
Section 29(1)(2) RTA states: (1) Subject to subsection (3), every person who receives any rent payable under or in respect of any tenancy agreement shall give or cause to be given to the person paying the rent a written receipt bearing – (a) The address of the premises, or an appropriate code or reference to identify the premises to which the payment relates; and (b) The amount and nature of the payment; and (c) The date of the payment; and (d) The name (if known) of the person who made the payment. (2) The receipt shall be given to the person paying the rent – (a) Forthwith where payment is made in cash; and (b) Within 72 hours after payment, in any other case.
Both parties accept that the tenant paid $200.00 towards rent electronically bank transfer and the balance in cash.
Different reasons for the partial payment of rent in cash were given by both parties. The reason for any payment of rent in cash is not relevant.
The tenant claims the landlord never provided a receipt for any cash payments of rent.
The landlord accepts that no receipts were given, but claims the tenant never asked for any. The tenant disputes this.
Sections 29(1) and (2) RTA do not require a tenant to request a receipt for payment of rent. A landlord is required to provide a tenant with a receipt, whether the tenant asks for it or not.
I find that the landlord breached sections 29(1) and (2) RTA by not giving the tenant an immediate receipt for cash payments of rent.
Failure to provide receipts is another example of poor documentation and record keeping regarding this tenancy. Failure to provide receipts for cash payments of rent creates uncertainty regarding the accuracy of any rent summary.
I find that the landlord failed to provide receipts for cash payments of rent during this entire tenancy, which was one a half years long.
I consider $800.00 compensation is reasonable to reflect the landlord’s breach and effect on the tenant. Landlord’s right of entry
Section 48 RTA states: (1) The landlord shall not enter the premise during the currency of the tenancy, except – (a) With the consent of the tenant freely given at, or immediately before, the time of entry; or (b) In any of the circumstances described in subsections (2) to (3). (2) The landlord may enter the premises – (a) In any case of emergency; or (b) For the purpose of inspecting the premises, at any time between 9 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks; or (c) ...
The tenant claims that the landlord knocked on the door of the property approximately 20 – 30 times during the tenancy without giving 48-hours’ notice.
Knocking on the door of the property does not constitute a breach of section 48 RTA, because there is no entry into the premises by the landlord. A claim that a landlord has knocked on the door approximately 20 – 30 times during the tenancy might more appropriately be framed as a breach of the tenant’s quiet enjoyment however, the claim was not phrased in this way by the tenant.
The tenant further claims that on one occasion the landlord knocked on the door and asked the tenant if they could take the sofa, as they had family visiting. The property was provided to the tenant fully furnished. The tenant gave evidence that they gave consent for this to occur, because they did not know they were allowed to refuse.
I find that the landlord had the consent of the tenant to enter the premises on this occasion. Although the tenant might have felt a sense of deference to the landlord, I do not consider this means that their consent was not freely given.
The tenant submitted a copy of a text message sent to the landlord on 11 November 2024 stating: Dear Salen Your termination notice is null and void. This is now escalated to tenancy tribunal. There are multiple breaches including matters related to rent, utilitie bills and dwelling not being consented. Therefore please do not hassle us in the meantime. You are advised to follow residential regulations when visiting our home.
The tenant gave further evidence that the landlord visited the property on 13 November 2024 with a real estate agent. The tenant claims the landlord asked the tenant to show the agent around the property.
The tenant’s wife was at home alone at the time. The tenant’s wife gave evidence that she opened the door but did not specifically give verbal consent for the landlord and real estate agent to enter the property. The tenant gave evidence that the landlord entered the property and she did not she ask them to leave.
After this encounter, Shane Narayan, sent the landlord the following text message on 13 November 2024: Hi u have again breached the agreement by not giving 48 hours notice and taking someone to premise...Please stop doing this...Till all gets sorted...It does not matter who it is and for how long...But [the tenant] needs their space and privacy.
The landlord gave evidence that they were separating from each other around late 2024 and intended to sell the property. Therefore, they organised to take a real estate agent around the property to get an appraisal. The landlord claims this was discussed verbally with the tenant two days prior and the tenant agreed. The landlord also claims that the tenant gave them permission to look through the property at the time.
I find that the tenant gave permission for the landlord and real estate agent to enter the property.
The tenant’s claim that the landlord breached section 48 RTA is dismissed. Quiet enjoyment
Section 38 RTA states: (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises by the tenant.
Section 38(3) RTA further states that contravention of section 38(2) in circumstances that amount to harassment of the tenant is declared to be an unlawful act.
In the context of section 38(1) and (2), “quiet” means peaceful, or “without interference,” not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession.” 1 Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home.
The tenant claims the landlord breached the tenant’s quiet enjoyment by: 1 Kenny v Preen [1963] 1 QB 499. a. Calling the tenant numerous times in a row, including very late at night or in the early hours of the morning; b. Knocking on the door and asking the tenant to turn down the music or lower the level of conversation when the volume was reasonable; and c. Watching video surveillance footage of people visiting the tenancy address and sending screenshots to the tenant.
I deal with each claim turn below. Calling the tenant late at night or early in the morning
The tenant claims that the landlord called them numerous times on Whatsapp very late at night or in the early hours of the morning. The tenant submitted a screenshot of their call log history, which shows that 7 calls were made by the landlord to the tenant within a short period of time. Some of the phone calls were as late as midnight.
The landlord gave evidence that they were in India at the time and were trying to contact the tenant about rent arrears, as well as outstanding payments for outgoings. The landlord claims they tried to call the tenant during the daytime, but the tenant never answered. The landlord thought this might be because the tenant was at work and therefore tried calling them at nighttime. The landlord accepts that some of the phone calls were made late at night and explained this was due to the time difference between India and New Zealand.
The tenant claims the screenshot of their call log is only a sample and there were numerous other phone-calls made by the landlord. The landlord denies this and claims that phone calls were only made to the tenant while they were in India between August – October 2024.
On the balance of probabilities, I find that the landlord breached the tenant’s quiet enjoyment by calling them 7 times within a short period of time. The fact that some of the phone calls were as late as midnight strengthens my finding. The landlord ought to have turned their mind to the time difference between India and New Zealand when calling the tenant.
The tenant has proven that the landlord engaged in a particular pattern of behaviour however, I do not consider the tenant has proven that the landlord’s behaviour reached the level of harassment.
The tenant did not submit their entire call log history and the landlord denied calling the tenant as much as the tenant alleged. I give the landlord the benefit of the doubt regarding this.
I also consider the fact that the landlord was trying to contact the tenant about missed payments of rent to be relevant. This was a cause of concern for the landlord who relied on the tenant’s rent to help them pay the mortgage. Some leeway must be extended to the landlord in following up with the tenant regarding this issue. The landlord was not contacting the tenant for and illegitimate purpose.
In the circumstances of this case, I consider $100.00 to be a reasonable amount of compensation the landlord should pay the tenant for this breach of their quiet enjoyment. Knocking on the door and asking the tenant to keep the noise down
The tenant claims there were numerous times during this tenancy where the landlord knocked on their door and asked them to lower the music or keep their voices down in circumstances where the overall level of noise was reasonable.
The landlord denies this and claims that they only asked the tenant to lower the music and their voice on one occasion.
The tenant submitted a letter from Anmol Kumar which states that one night they were visiting the tenant. Everyone was having a few drinks and “the noise level was normal.” Mr Kumar states that the tenant received a phone call from the landlord asking them to keep the noise down. The landlord then knocked on the door and asked the tenant to keep the noise level down in person. The tenant disagreed that the noise was excessive and the conversation then deteriorated into a discussion about bills the tenant owed.
The landlord gave evidence that on this particular night they received complaints from another tenant and the neighbours about the noise coming from the tenancy address. The landlord gave evidence that they knocked on the door and asked the tenant to turn the music down and the tenant struck up an argument with them. The landlord claims the argument escalated and the tenant threatened and assaulted them. A complaint was lodged with the Police. The landlord submitted a copy of the Police Acknowledgement Form.
The tenant denies threatening or assaulting the landlord.
Both parties accept that no charges were ever laid against the tenant.
The tenant claims that the reason the noise disrupted the other tenant was not because it was excessive, but because there was no sound barrier between the upstairs and downstairs tenancy.
I find that the tenant has not proven that the landlord asked them to keep the noise down on numerous occasions, only one.
The landlord owed a duty to protect the quiet enjoyment of the tenant in the downstairs tenancy. The landlord claims they were doing this when they asked the tenant to keep the volume down. The landlord did not call the downstairs tenant to give evidence on this point.
The tenant claims the volume was reasonable and submitted a statement from Anmol Kumar stating it was. Mr Kumar did not give evidence at the hearing. The landlord’s ability to cross-examine Mr Kumar was limited and I bare this in mind when considering the weight I can reasonably give this evidence.
In all the circumstances, I am unsure about the level of noise on this occasion and whether it was reasonable or not. I am unsure what transpired when the landlord knocked on the door. I am unsure what transpired during the discussion between the landlord and tenant. I am unsure whether any threats were made. I am unsure about a lot of things.
The tenant bares the onus of proving that the noise was reasonable on the balance of probabilities and the landlord breached their quiet enjoyment by asking them to turn it down. They have not done this.
The tenant’s claim that the landlord breached their quiet enjoyment by asking them to keep the volume down is dismissed. Watching video surveillance footage and taking screenshots of visitors to the tenancy address
The tenant claims the landlord breached their quiet enjoyment by taking screenshots of CCTV footage from a camera situated outside the property near the entrance door. The tenant states the screenshots were of visitors to the tenancy address and the landlord sent the screenshots to the tenant. The tenant claims that screenshots were only of female visitors.
The landlord accepts that they took screenshots of visitors to the tenancy address and sent them to the tenant. The landlord states this was done because they were receiving complaints from the downstairs tenant about the level of noise coming from upstairs.
The landlord was suspicious about the number of people living at the tenancy address. The landlord also claims that they took screenshots of visitors because the tenant was not paying rent. 89 I find that the landlord breached the tenant’s quiet enjoyment by watching CCTV footage of visitors to the tenancy address and sending screenshots to the tenant. The tenant claims they felt like they were being monitored and that is understandable. The landlord’s actions interfered with the reasonable peace, comfort and privacy of the tenant in the use of the premises.
I consider this invasion of privacy to be serious and order the landlord to pay the tenant $1,500.00 compensation. Landlord entering into possession without consent or order of the Tribunal
Section 63(1) RTA states: No person shall enter into possession of any residential premises in the occupation of a tenant except with the consent of the tenant or pursuant to an order for possession made by the Tribunal and duly enforced in accordance with section 106.
The tenant claims that on 11 November 2024 their wife’s mother was visiting from overseas. The tenant’s wife and mother went shopping. When they returned, the gate to the property was locked with a metal chain and padlock and they could not enter.
The tenant claims their mother-in-law has diabetes and a heart condition. Her medication was inside the property and she needed to access it.
The tenant’s cousin eventually arrived and removed the gave from its hinges to allow the tenant to enter.
The landlord accepts that they padlocked the gate on 11 November 2024, but claims this was because the night before there was a disagreement with the tenant and the tenant threatened to burn the property down. The landlord claims attaching a chain and padlock to the gate was a temporary measure to ensure the safety of the property until they had filed a Police report. The landlord claims they did not intend to permanently lock the gate.
I find the landlord entered into possession of the premises by installing a chain and padlock around the gate. The gate was tall and made from metal. It is the only way to access the property, which is situated down a long driveway. There was no other means of access for the tenant. I consider the situation is analogous to a landlord changing the locks on a tenancy address.
I accept the tenant’s evidence that it was stressful for them to return home and not be able to get inside the property. The tenant gave evidence that they had to wait for hours on the berm for their cousin to arrive and this was embarrassing for neighbours to see. Further, they were concerned about the health issues their mother-in-law suffered from.
If the landlord was concerned about the safety of their property, there were alternative steps they could have taken.
In all the circumstances, I consider $1,500.00 to be a reasonable amount of compensation to reflect the landlord’s breach. Termination of tenancy without grounds
Section 60AA RTA states: A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.
The tenancy agreement records that this was a fixed-term tenancy from 5 July 2023 to 5 July 2025.
On 17 October 2024, the landlord served the tenant a notice to terminate the tenancy. Amongst other things, the notice states: I am giving you 28 days notice from 8 October 2024. Please vacate my property by 8 November 2024.
No reason for the termination is recorded in the notice.
A fixed-term tenancy only terminates on the expiry of the term of the tenancy or, if any of sections 55AA, 56A(1), 58(1)(d), (da), 58A, 59A or 59B apply, by giving notice in accordance with the applicable section. 2 A fixed-term tenancy may also terminate by order of the Tribunal pursuant to the powers conferred on it by the RTA. 3
A landlord is not able to terminate a fixed-term tenancy by simply giving a tenant 28 days’ notice.
The landlord claims that they rang Tenancy Services and were advised that they could end the tenancy by giving 28 days’ notice because the tenant was behind in their rent. The landlord also claims their boss told them they could do this.
I have reservations about whether Tenancy Services gave the landlord any such advice. It is rudimentary that a fixed-term tenancy cannot be terminated by giving 28-days’ notice for rent arrears.
I find that the landlord breached section 60AA RTA by giving the tenant a 28- day notice to end the tenancy when they were not entitled to do so. The landlord failed to take sufficient steps to inform themselves of the circumstances in which they could terminate this fixed-term tenancy. In doing so, I am satisfied that they purported to terminate this tenancy knowing they were not entitled to do so. 2 Residential Tenancies Act 1986, section 50(1)(a). 3 Residential Tenancies Act 1986, section 50(1)(f)
The tenant claims that the landlord’s termination notice initially caused them significant stress. The tenant states they were devastated and quickly sought advice. After learning that the notice was not enforceable, the tenant relaxed. The tenant did not vacate the premises on 8 November 2024, only on 12 December 2024 by order of the Tribunal.
Baring in mind the fact that the tenant was put at ease as relatively quickly, I consider $1,500.00 to be a reasonable amount of compensation the landlord should pay the tenant. Healthy homes standards – heating
Section 45(1)(bb) RTA requires a landlord to comply with the healthy homes standards (HHS).
The HHS are found in the Residential Tenancies (Healthy Homes Standards) Regulations 2019, which provide minimum requirements for residential tenancies relating to heating, ventilation, draught stopping, moisture and drainage
The tenant claims the landlord breached Regulation 8 by not having a qualifying heater in the main living room.
The landlord gave evidence that the property has a central heating and cooling system. The landlord submitted a photograph of the panel for the central heating and cooling system. The landlord referred to photographs showing the vent for the heating and cooling system.
The photograph of the panel shown by the landlord is consistent with what the Tribunal understands central heating and cooling panels to look like. On the balance of probabilities, I am satisfied that the property complies with the heating standards in regulations 8 – 12 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
This claim is dismissed. Unlawful residential premises
Section 78A(2) Residential Tenancies Act 1986 (RTA) states: For the purposes of this Act, unlawful residential premises means residential premises that are used for the occupation of a person as a place of residency 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), ..., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 36 of the Act states that: The landlord shall 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.
Section 45(1)(c) states that: (1) The landlord shall – ..... (c) Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;
The first step in determining whether premises are unlawful is there needs to be a finding that the property cannot lawfully be occupied for residential purposes. This involves making a finding that the whole property has some sort of regulatory failure which means it cannot be occupied as a residential dwelling. In other words, the unlawfulness has been more than, say, just an “outstanding permit for a bathroom.” 4
Prior cases where the Tribunal has found premises to be unlawful appear to fall broadly into one or more of the following categories: a. Unconsented premises. In other words, premises where there has been no building consent or resource consent for the premises at all. b. Premises where an abatement notice or dangerous and insanitary building notice has been issued by the Council. c. Cases where garages, basement conversions or parts of premises being used as a larger household unit have been converted for residential use and then rented out as a separate household unit, without Council consent as to the change of use. The premises themselves may have had the 4 Mansfield v Silk and another [020] NZTT 4246581, at [16]. necessary building consents but there is no Council approval for the use of the premises as a separate household unit.
The tenant submits that the third category applies to the present case. The tenant claims the landlord converted the garage into a separate residential dwelling without obtaining Council consent. The tenant states that they occupied the first floor of the main residence and another tenant occupied the converted garage and two bedrooms in the downstairs part of the main residence.
Given both limbs of section 78A(2) must be satisfied before a premises is deemed an unlawful residential premises, it is useful to consider sections 36 and 45(1)(c) when considering whether the use of the premises is unlawful. If the occupation of the premises is unlawful as a result of either section, it will be likely that the landlord’s failure to comply with those sections contributed to the unlawfulness of the occupation.
In this case, section 45(1)(c) RTA requires consideration of Schedule 1 of the Building Regulations 1992 (the “Building Code”) and sections 114 and 115 of the Building Act 2004.
Section 114 requires the owner to give notice of a change of use of the building and makes failure to do so an offence.
Section 115 provides that 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; and (b) ...
To determine whether there has been a change in use of a building, consideration must be given to the Buildings (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 (“the regulations”).
Regulation 6 states that every building or part of a building has a use as specified in the table in Schedule 2 of the regulations. The following uses in Schedule 2 are relevant for residential purposes: SA (Sleeping Accommodation) spaces providing transient accommodation, or whether limited assistance motels, hotels, hostels, boarding houses, clubs (residential), boarding or care is provided for people schools, dormitories, halls, wharenui SR (Sleeping Residential)attached and multi-unit residential dwellings, including household units attached to spaces or dwellings with the same or other uses, such as caretakers’ flats, and residential accommodation above a shop multi-unit dwellings, flats, or apartments SH (Sleeping Single Home)detached dwellings where people live as a single household or family, including attached self- contained spaces such as granny flats when occupied by a member of the same family, and garages (whether detached or part of the same building) if primarily for storage of the occupants’ vehicles, tools, and garden implements dwellings or houses separated from each other by distance
The tenant claims that the consented use of the tenancy address is as a “SH – sleeping single home” and the landlord has changed the use to “SR – sleeping residential” by converting the garage into a separate residential dwelling with a kitchenette. The tenant claims the landlord has not obtained Council consent for any building work completed or for the change of use.
The landlord accepts that they did not seek any consents from the Council when they converted the garage into a separate residential dwelling. The landlord accepts that a different tenant occupied the garage and that it had a kitchenette.
Neither party submitted any admissible evidence from the Council in terms of written communication, a Land Information Memorandum (LIM) or property file for the address.
The tenant claims there is no firewall between the converted garage and main premises. The landlord claims there is.
To be successful in their claim, the tenant must prove on the balance of probabilities that the consented use of the property at the time was as a “SH – sleeping single home.” No admissible evidence was submitted by the tenant to support this.
The fact that the landlord accepts that they converted the garage into a residential dwelling without obtaining any consents does not prove what the consented use of the premises during this tenancy was. Whether or not there was a firewall also does not help to prove the consented use of the premises. No evidence to support the claim that there was no firewall was submitted during the hearing.
The landlord did not give any evidence on the consented use of the property and appeared perplexed at this issue. That is understandable. It is complex.
In the absence of any evidence from the Council establishing the consented use of the premises as a “SH – single sleeping home” at the time, I am left uncertain as to whether the landlord needed to obtain consent from the Council to change the use of the premises from “SH – single sleeping home” to “SR – sleeping residential.”
The tenant has not proven that the property was only consented for use as a “SH – single sleeping home” during this tenancy.
I decline to declare that this was an unlawful residential premise. LANDLORD’S CLAIMS Rent arrears
The landlord claims the tenant owes $3,400.00 in rent arrears. The tenant disputes this.
The tenant accepts that they did not pay the last four weeks of rent, which equates to $2,400.00.
The landlord’s rent summary is not comprehensive. It does not begin from the start of the tenancy. It does not show the date on which rent was due, the rent period it covers, the date rent was paid or a running total of the arrears. Further complicating matters is the fact that both parties accept that the tenant paid a portion of the rent in cash and no receipts were issued.
I do not consider the landlord has proven that the tenant owed $3,400.00 in rent arrears at the end of the tenancy.
On the basis of the tenant’s admissions, I find that the tenant owed $2,400.00 in rent arrears.
The landlord’s claim for rent arrears is granted for $2,400.00. Failure of tenant to pay bond
The landlord claims the tenant did not pay a bond of $2,000.00 within one month of the tenancy beginning as was agreed in the tenancy agreement.
The tenant accepts that they did not pay the bond.
The tenant claims that the relationship with the landlord soured shortly after the tenancy began, as there were disputes about outgoings and the tenant’s share.
I find that the tenant failed to pay the bond, but I do not consider the landlord was prejudiced by this. I decline to order compensation. Outgoings
Section 39 RTA states: The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.
The landlord claims the tenant owes $1,832.38 in water and power. The landlord claims this reflects the tenant’s share of the total outgoings paid. The landlord gave evidence that there was only one main water and power meter for the address however there were three separate household units that shared these meters. One household unit was the tenant, one was the landlord and the other was another tenant.
The landlord claims that it was agreed between everyone that the outgoings would be split evenly into thirds. The tenancy agreement records this.
The landlord submitted copies of the original water and power invoices.
The landlord is unable to prove that the amount claimed in outstanding water and power is exclusively attributable to the tenant’s occupation of the premises and use of the facilities. This is because there were no separate water and power meters for the different household units.
The landlord’s application for outstanding outgoings is dismissed.

FILING FEE AND NAME SUPPRESSION

The tenant has been substantially successful in their claim. The landlord has not. Therefore, I order the landlord to reimburse the tenant the filing fee.
As the tenant has been substantially successful in their claim, I also grant their request for name suppression.
The landlord requested name suppression however they have not been wholly or substantially successful in their claim. Therefore, I am not required to grant them name suppression under section 95A(1) RTA.
I have a residual discretion to grant the landlord name suppression under section 95A(3) RTA. This section requires me to consider the interests of the parties and public. In Lewis v Wilson & Horton [2003] 3 NZLR 546 at paragraph 43, The Court of Appeal endorsed the approach taken in the High Court, which held: ...that the principle of open justice dictates that there should be no restriction on publication of information about a case ‘except in very special circumstances.’
The landlord did not advance their application for name suppression at the hearing. I was not referred to any special circumstances why name suppression should be granted and none are apparent from the facts of this case.
I have considered the interests of the parties and the public interest. I do not consider that this is an appropriate case to grant the landlord name suppression.

Tenancy Tribunal case 5081970 — Rent arrears at 19A Bledisloe Street, Papatoetoe, Auckland 2104

At a glance

Tenancy Tribunal case 5081970 — Rent arrears at 19A Bledisloe Street, Papatoetoe, Auckland 2104

At a glance

Award balance

Claims & awards

Order

Reasons

PRELIMINARY MATTERS

FILING FEE AND NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

PRELIMINARY MATTERS

FILING FEE AND NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions