What was Tenancy Tribunal case 5129288 about?

The tribunal order states: The minor dwelling at [Tenancy address suppressed] is declared to be an

How much money was awarded in case 5129288?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5129288?

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

Where can I read the official tribunal order for case 5129288?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11462650-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5129288 about?

The tribunal order states: The minor dwelling at [Tenancy address suppressed] is declared to be an

How much money was awarded in case 5129288?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5129288?

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

Where can I read the official tribunal order for case 5129288?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11462650-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5129288 — Healthy homes

Order

The minor dwelling at [Tenancy address suppressed] is declared to be an unlawful residential premise, pursuant s45(1)(c) of the Residential Tenancies Act 1986 (“RTA”), as it does not have resource consent and resource consent cannot be obtained.
An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord and tenant’s names and identifying details

Reasons

The landlord has sought a declaration from the Tribunal as to whether she can rent out the minor dwelling on her property. Background
The previous owner of the property, [Tenancy address suppressed], converted a barn into a 4-bedroom home (“home”) for his daughter. It does not have building consent.
The home complies with the Building Code, has passed a “Safe and Sanity Report”, that was issued in respect of the conversion/building works, and is fully healthy homes standards compliant.
The home cannot get Building Consent or a Certificate of Acceptance because it is too large, being 170m2 whereas a secondary dwelling on this property, can be no more than 63m2.
The home is insured, as the landlord’s insurer accepted the Safe and Sanity Report. The law
Section 45(1)(c) of the RTA confirms the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Section 45(1A) of the RTA confirms that any breach of s45(1)(a) to (ca) of the RTA is declared to be an unlawful act.
Schedule 1A of the RTA confirms that the Tribunal may award exemplary damages for intentional breaches of s45(1)(a) to (ca) of up to a maximum of $7,200.00.
Section 78A(2) defines an unlawful residential premises as: “a residential premises that are used for occupation for a person as a place of residence but 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 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”.
Section 56A of the RTA confirms: (1)A tenant of premises that at the start of the tenancy were, and that remain, unlawful residential premises may terminate the tenancy by giving not less than 2 days’ notice to the landlord. (2)Without limiting subsection (1), a landlord or a tenant may apply to the Tribunal for an order terminating a tenancy on the ground that the premises are unlawful residential premises. (3)The Tribunal may make the order if section 78A applies and the Tribunal is satisfied that it would be inequitable to refuse to make an order terminating the tenancy.
Where a premise is declared to be an unlawful premise, s78A(4)(a) of the RTA allows the Tribunal to require the landlord to repay too the tenant(s) of all or part of the rent the tenant(s) have paid for the duration of their tenancy.
Section 78A(3)(a) of the RTA confirms: Despite anything to the contrary elsewhere in the RTA, (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: (b) if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.
Section 78A of the Residential Tenancies Act 1986 (RTA) does not provide examples of what constitutes an unlawful dwelling. However, since these provisions became law as part the RTA 2019 Amendments, the Tribunal has found the following types of premise to be an unlawful residential premise under Section 78A of the RTA: a. A premises that has never had resource nor building consent; b. Minor dwelling that never had resource consent; c. Minor dwelling that is not consented for sleeping; d. Minor dwelling that does not have CCC or COA; e. A rental property that does not comply with the Building Act 2004; f. A premises that does not comply with the 1947 Housing Improvement Regulations; g. A premise that does not comply with the Building Code. Analysis
The minor dwelling at [Tenancy address suppressed] would be found to be an unlawful residential premise, pursuant to the definition set out in s78A of the RTA, as it has never had resource consent or a CCC or COA.
If the landlord chose to rent out this unlawful residential premise, she would be taking the risk that: a. The tenant asks for the tenancy to be terminated with two days’ notice (s56A) of the RTA; b. She could be penalised up to a maximum $7,200.00 in exemplary damages for intentionally renting premises to tenants that she knew were unconsented and that do not have a CCC or COA and are not capable of meeting these regulatory requirements, due to the size of the minor dwelling (s45(1) and Schedule 1A of the RTA); c. She could be required to repay all or part of any rent paid to the tenant(s) (78A of the RTA); d. She is unlikely to successful in any claims made to the Tribunal for compensation or exemplary damages for any tenant breaches of the provisions in the RTA or the tenancy agreement. This means if a tenant damaged the premise or was in rent or water rates arrears, the landlord would be unlikely to be able to recoup monies to cover these debts or to be awarded exemplary damages for Schedule 1A tenant breaches (S78A of the RTA.
I conclude that the landlord would be committing an unlawful act intentionally, if the landlord were to rent out this unlawful residential premise to prospective tenants, as well taking a number of known financial risks that could cost her far more than any potential rent paid to her. Name suppression
The parties apply for non-publication of their names and identifying details.
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 interest or is justified because of the party’s conduct or any other circumstances of the case.
The landlord has sought a declaration. I do not consider publication is in the public interest or justified because of the landlord or the tenant’s conduct or any other circumstances of the case.
Non-publication of both parties names and identifying details is ordered.

Tenancy Tribunal case 5129288 — Healthy homes

At a glance

Tenancy Tribunal case 5129288 — Healthy homes

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions