What was Tenancy Tribunal case 5094760 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 5094760?

Compensation: $259.15 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Refund For Unlawful Premises: $900.00 awarded to tenant

What type of tenancy dispute was case 5094760?

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

Where can I read the official tribunal order for case 5094760?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11725760-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5094760 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 5094760?

Compensation: $259.15 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Refund For Unlawful Premises: $900.00 awarded to tenant

What type of tenancy dispute was case 5094760?

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

Where can I read the official tribunal order for case 5094760?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11725760-Tribunal_Order_Redacted.pdf.

24 Birman Close, Half Moon Bay, Auckland 2012, Tenancy Tribunal Case 5094760 — Exemplary damages

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 5094760 — net $2,186.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund for unlawful premises	$900.00	Rent refund for unlawful premises
Exemplary damages for harassment	$1,000.00	Exemplary damages for harassment
Compensation for cost of Healthy Homes report	$259.15	Compensation for cost of Healthy Homes report
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,186.15
Total payable by Landlord to Tenant	$2,186.15

Both parties attended the hearings on 4 March and 9 April 2025. Background

The parties signed a residential tenancy agreement for a periodic tenancy from 12 December 2023. The agreement stated that the tenants were renting the downstairs space, but access was still required from others living in the house to the shared washing machine. The rent was $470.00 per week which included $20.00 for electricity, water, and internet.

An advertisement for the premises included the heading “Self-contained unit to rent” and described the premises as a large 90m² space with a kitchen, two lounges, a double bedroom, and bathroom. The advertisement said the kitchen had a washing machine.

The upstairs and downstairs areas share an entrance. This goes up some stairs to the upper floor occupied by the landlord (comprising 4 bedrooms, bathroom, lounge, kitchen, and dining) and down some steps to an internal door providing access to the basement occupied by the tenants.

The tenants wrote letters to the landlord on 4, 5, 16 and 30 September 2024 and 9, 16 and 26 October 2024. The tenants complained that the landlord was accessing their living space to use the washing machine in the kitchen without giving 24 hours’ written notice. The 30 September 2024 letter was a notice to remedy and requested that the landlord cease unauthorised entry into the tenants’ living space.

The tenants’ written submissions referred to entry by the landlord on 19 October 2024 at 9.46am, 20 October 2024 at 10.16am and 7.31pm, 26 October 2024 at

03am, and 27 October 2024 at 12.06pm and 8.17pm while one of the tenants was in the bathroom.

On 8 October 2024 the landlord sent an email stating that he did not have to give notice to use the washing machine, as this was agreed in the tenancy agreement. On 16 October 2024 the landlord served a 90-day termination notice. The landlord advised that he would be using the washing machine every Saturday and Sunday.

On 21 November 2024 (application 5044910) the Tribunal, after discussing jurisdiction and finding that this was a landlord and tenant relationship subject to the Residential Tenancies Act 1986 (the Act) declared the termination notice to be invalid and awarded exemplary damages of $450.00 for retaliatory notice.

On 3 December 2024 the tenants applied to the Tribunal claiming compensation for breach of the Healthy Homes Standards, exemplary damages for harassment, and a refund of all rent paid on the basis the premises could not be lawfully occupied for residential purposes ($25,380.00).

On 22 December 2024 the tenants gave notice of termination pursuant to section 56A of the Act on the basis the premises were unlawful. The tenants vacated on 24 December 2024.

On 4 February 2025 the landlord applied to the Tribunal for rent arrears for 28 days, outgoings (internet) and cleaning. Unlawful Residential Premises

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 sections 36 or 45(1)(c) of the Act (see section 78A of the Act). Section 45(1)(c) requires the landlord to comply with building legislation applying to the premises.

Section 115 of the Building Act 2004 provides that an owner must not change the use of a building, where the change involves the incorporation of one or more household units where they did not exist before, unless the Council is satisfied that the building in its new use will comply with the building code. The proposed change of use needs to be notified to the Council.

There has been some case law on the meaning of “household”. It has been said to connote “intimate relationships of a domestic nature”, and that the essential connotation of the term is “familial domesticity” (Jayashree Limited v Auckland Council [2019] NZDC 2407). The premises were advertised as being self- contained; the tenants had their own exclusive and physically separate living space. They comprised a household.

There are further provisions for determining when there has been change of use in the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 (the Change of Use Regulations).

The premises were built in 1978. In 1983 the basement was converted to a garage and family room, with the addition of a laundry and a carport. In 1992 there were further additions – a “bedroom / living room / basement rumpus room” according to the Land Information Memorandum (LIM). This accords with what can be seen in the photographs provided by the parties: the premises comprise an open-plan basement with separate rooms for the bedroom, bathroom, and kitchen. The latter looks like a laundry area that has been converted into a kitchenette. A breakfast bench was located outside this tiled area, in the open-plan space adjacent to the kitchen. Subsequently, in 2002, the carport was demolished, and a garage was constructed. The photographs show there was internal access to the garage via the premises.

The Tribunal spoke to a Council compliance officer at the second hearing, who had visited the premises and was familiar with its layout. The officer explained that buildings do not have a “specified use” assigned to them under the Change of Use Regulations, rather, their use is assessed on a case-by-case basis. The officer advised that if the premises were being divided into different households it would have been notified on the system. The system could be missing some information, but there was no sign of legacy consents permitting separate occupation. There was no mention of a kitchen in the property file.

I consider it is more likely than not that the use of the premises under the Change of Use Regulations changed from Sleeping Single Home (SH) to Sleeping Residential (SR) when a further household was created or incorporated by renting the basement area to the tenants. The premises changed from a single household to a multi-unit dwelling because the building then contained more than one separate household. This would probably have had implications for the performance of the building in the event of fire (Clause C3 of the building code).

In terms of remedies, the Tribunal may make an order for the refund of rent (section 78A(4)). The Tribunal has a wide discretion to fashion an appropriate remedy in all the circumstances. The key consideration in my view is the extent of any prejudice or detriment which has been caused to the tenants because of the unlawful nature of the premises. The landlord submitted that the photographs showed a lovely area to live in, that was not unsafe or uninhabitable.

I accept, below, that there was a breach of the Healthy Homes Standards in relation to heating and ventilation. I have also accepted that this may account for the tile issues in the bathroom, for example. But beyond that it is difficult to see how the tenants’ enjoyment of the premises was impacted by the apparent lack of consent for change of use. The most that can be said is that the Council might have required the performance of additional building work to ensure compliance with aspects of the building code.

In my view, this is a case where there has been a technical breach of the Act, meaning, a failure to comply with the law which has had limited adverse effects in practice. The landlord pointed out that the building work was performed under an earlier Building Act and before he became the owner of the premises in 2006. While that is a factor to be taken into consideration, it was the change of use from SH to SR which rendered the occupation unlawful: the premises could lawfully be occupied as one household when the landlord became the owner, but not as two households.

I have also considered the landlord’s evidence that he was unaware of the rules around change of use, that he provided all the furniture and cooking equipment, permitted the tenant to smoke medicinal cannabis in the premises (which had been prescribed) and his view that the tenants had made great efforts to get out of the contract and/or obtain a windfall. He noted that the tenants made no complaints about the premises until there was an issue with the washing machine. I accept that the motivation for this part of the tenants’ application is a relevant factor when considering remedies. It cannot be entirely discounted that there was an element of retaliation involved.

I have considered the tenants’ view that they paid rent for a year for an unlawful unit that did not meet compliance standards and was unsafe and unfit for habitation. I am not satisfied that the premises were either insanitary or dangerous as those terms are defined under the Building Act 2004

There are several District Court cases where a technical breach has resulted in a rent refund of $2,000.00. In Harding v Caroto [2023] NZDC 5981 a change of use was required when the tenant occupied a granny flat in part of the lower floor of premises consented for use as a single home. The Tribunal awarded a rent refund of $1,100.00 and the District Court reduced this to $975.00. Harding has more comparable features to this matter than the other cases. I consider a rent refund of $900.00 is appropriate (2 weeks’ rent). Healthy Homes Standards

[The tenant/s]ection 45(1) of the Act requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (the HHS Regulations). The HHS Regulations applied to the premises on the 120 th day after commencement of the tenancy, i.e., by approximately 11 April 2024.

The tenants obtained a Healthy Homes Assessment dated 18 September 2024. This found that the premises did not comply with the heating and ventilation standards. There was a heat pump in the open plan area, but its heating capacity of 5.5kW was less than 80% of the 8.9kW required. There was no extractor fan in the kitchen or bathroom.

While the evidence indicates that the HHS Regulations were breached, the landlord did not intend to do so – indeed, he did not intend to rent out the premises subject to the Act at all. It is also difficult to identify any meaningful prejudice to the tenants from the breach. The premises look to have provided the tenants with a large and comfortable living space. The evidence does not show that the lack of extractor fans caused more than de minimis issues with dampness or mould, or that the premises could not be heated adequately in the colder months. The tenants said the heat pump did not work very well but this was disputed by the landlord. I note the Healthy Homes Assessment recorded that the heat pump was working.

The rent refund awarded pursuant to section 78A compensates the tenants for the landlord’s failure to rent compliant premises. The breach of the Healthy Homes Standards is legally distinct but can be seen to involve the same or similar loss. I consider the detriment arising from breach of the Healthy Homes Standards is compensated for by the rent refund.

I award further compensation of $259.15 for the cost of the Healthy Homes Assessment, which was necessary to establish the breach. Harassment

A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises (section 38(2) of the Act).

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 (section 38(3) of the Act).

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 tenant referred to 34 breaches of quiet enjoyment when the landlord entered the premises to use the washing machine or the garage between 3 August 2024 and 17 November 2024, supported by 20 or so video recordings. There was also an incident at 9.18pm on 15 December 2024, when the landlord entered the unit to reset a tripped fuse (the fuse box for the building was in the basement). The video shows the landlord entering the premises and attending briefly to the fuse box close to the entrance. The landlord phoned and texted the tenants before entering on that occasion, although the tenants said he texted and entered at the same time.

The tenants characterised the landlord’s behaviour as a “persistent violation” of their tenancy rights, causing “significant emotional distress” and disrupting their peace of mind.

The evidence gives the impression that the landlord believed he was entitled to access the basement whenever he wanted to. His justification for this was that it was a common area, there was contractual agreement for shared use of the washing machine, and the tenants were boarders because he was also living in the house. The landlord continued to conduct himself in this way after the tenants advised him that his behaviour was unlawful and unwanted. However, the landlord did not access the premises after the Tribunal’s order of 21 November 2024, except for the incident on 15 December 2024. I accept that the landlord on that occasion had a genuine need to enter the premises on short notice.

I have reviewed the tenants’ videos which cover the period from 29 August 2024 to 17 November 2024. The landlord would sometimes knock before entering but without waiting for verbal permission to do so. Relations became more strained when the tenants started to verbally object to his conduct. When challenged on one occasion, the landlord argued with the tenants and sought to justify his actions. He continued to assert that he was entitled to use his washing machine and disputed having to give notice prior to entry. The landlord objected to being videoed by the tenant and likewise started to video them while walking to the kitchen. In the earlier videos, the landlord made several derogatory comments in response to the tenant’s behaviour, which I interpret as an expression of exasperation. Neither party engaged in overtly aggressive verbal or physical behaviour, and the landlord’s later visits tended to take place in stony silence.

I find that the landlord breached the tenants’ quiet enjoyment through a pattern of behaviour amounting to harassment. I accept, as previously, that the landlord genuinely believed the tenants were staying in his house as boarders and that he had a right of access to the washing machine. I also acknowledge that this was the first time the landlord had rented out the basement. On the other hand, his behaviour was intentional, and he wilfully ran the risk of being found to be wrong in his assumptions. One option for the landlord would have been to apply to the Tribunal for a declaration as to whether the Act applied to the premises. Instead, the breach was repetitive and sustained over several months, despite the tenant’s complaints.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (section 109(3) of the Act).

The landlord’s intention is relevant here. The landlord’s acts were intentional, but he did not set out to breach the Act and believed he was justified in accessing the basement downstairs. His casual demeanour (the tenants also provided several videos of the landlord walking outside their kitchen window to his clothesline) supports the view that he genuinely did not think he was doing anything wrong. Yet even if it had only been a flatting situation, it would have been evident to a reasonable observer that the frequent uninvited entry to the flatmates’ living area breached their privacy, especially for a couple living together. The tenants spoke about the effect on them in written submissions; I consider that most people would find the landlord’s unannounced visits intrusive, even if they had no predisposition to anxiety or alarm.

The Tribunal previously awarded exemplary damages of $450.00 for retaliatory notice. While the Tribunal’s focus was on the effect of the notice, it also had regard to the context which led to the notice being given. There is some level of overlap between an award for retaliatory notice as the culmination of the harassing conduct and an award for the behaviour that led up to that point.

This claim was really the gravamen of the tenants’ application in my view. After considering all the factors in section 109(3) of the Act, and the previous award, I consider it would be just to award exemplary damages of $1,000.00. Landlord’s Application Rent

The landlord claimed rent of $1,800.00 for 4 weeks. I have made a finding that the premises were unlawful. It follows from this that the tenants were entitled to vacate on 2 days’ notice (section 56A) and do not owe any rent. Internet

The landlord claimed additional internet costs of $15.34 per month for a year ($159.32). The landlord said he installed a WiFi booster in the premises at the tenants’ request, which increased the cost. The tenants noted that the tenancy agreement provided for internet charges as part of the rent. They said the landlord agreed to obtain the booster prior to the start of the tenancy, without mentioning any additional costs.

I find there was no agreement that the tenants would pay or contribute towards the additional internet cost. Cleaning

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy and remove all rubbish.

The landlord said the shower was dirty and the tiles had to be cleaned and re- grouted at a quoted cost of $1,167.25. The carpets were dirty, and the landlord said he had been quoted $849.85 to have them professionally cleaned.

The tenants submitted that re-grouting was a maintenance issue and noted that the Healthy Homes Assessment identified insufficient ventilation, which would have accelerated the grout’s deterioration. The tenants said that the advertising photographs showed the shower grout was in poor condition when they moved in.

I consider that the lack of an extractor fan in the bathroom may have contributed to the marks in the grout, and there is some evidence that the issue predated the tenancy. I find that the tenants are not responsible for re-sealing the shower tiles.

The tenants said the carpet stains were pre-existing, as shown on the advertising photographs. They noted that the landlord had not provided a pre- tenancy inspection report showing the condition of the carpets prior to the tenancy. I find it has not been established that the carpet stains were caused by the tenants. Curtains and Blinds

The landlord said he had to replace a ripped net curtain and a dirty bedroom blind. The tenants referred to the Healthy Homes Assessment, which had identified draughts and gaps around the windows.

I accept that the gaps could have contributed to the damage to the curtain and blinds. The tenants also provided photographs taken on 17 November 2024, said to show the blinds and curtain in good condition. I find it has not been established that the damage to the curtain and the dirty blinds was caused by the tenants. Smoke Alarm

The landlord said the tenant had removed a smoke alarm for the purpose of the Healthy Homes Assessment conducted on 18 September 2024 and then put it back. The landlord’s photograph showed a smoke alarm on the ceiling at the end of the tenancy. The tenants referred to photographs which they said showed the alarm was missing before the inspection. They complained of a lack of smoke alarms.

The Healthy Homes Assessment does not refer to smoke alarms. I find it has not been established that the tenants removed a smoke alarm for any reason. Filing Fee and Name Suppression

The tenants’ application has been largely successful. I award the filing fee.

The tenants are granted suppression as requested.

The landlord requested suppression but has not been “wholly or substantially” successful (section 95A).

Reasons

Claims and awards in Tenancy Tribunal application 5094760 — net $2,186.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund for unlawful premises	$900.00	Rent refund for unlawful premises
Exemplary damages for harassment	$1,000.00	Exemplary damages for harassment
Compensation for cost of Healthy Homes report	$259.15	Compensation for cost of Healthy Homes report
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,186.15
Total payable by Landlord to Tenant	$2,186.15