What was Tenancy Tribunal case 5235672 about?

The tribunal order states: The above premises were unlawful residential premises for the duration of

How much money was awarded in case 5235672?

Filing Fee: $27.00 awarded to tenant; Rent Refund: Unlawful Premises: $7,428.57 awarded to tenant

What type of tenancy dispute was case 5235672?

The dispute type was not classified.

Where can I read the official tribunal order for case 5235672?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12615709-Tribunal_Order.pdf.

What was Tenancy Tribunal case 5235672 about?

The tribunal order states: The above premises were unlawful residential premises for the duration of

How much money was awarded in case 5235672?

Filing Fee: $27.00 awarded to tenant; Rent Refund: Unlawful Premises: $7,428.57 awarded to tenant

What type of tenancy dispute was case 5235672?

The dispute type was not classified.

Where can I read the official tribunal order for case 5235672?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12615709-Tribunal_Order.pdf.

18 Sunrise Valley Road (downstairs), Upper Moutere, Upper Tenancy Tribunal Case 5235672 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 5235672 — net $7,455.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund: Unlawful premises	$7,428.57	Rent refund: Unlawful premises
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$7,455.57
Total payable by Landlord to Tenant	$7,455.57

The tenants appeared at this hearing after a previous adjournment for the landlord’s benefit as she was travelling overseas at that time. Another adjournment request from the landlord for this hearing was made and declined. Ms Rutherford had indicated she would not attend, although the option of joining remotely was offered to her in the alternative but not taken up. A written response to the tenant claims had been submitted by her and this was considered where appropriate.

The landlord lodged a counter-claim just before the hearing. As she did not appear to prosecute her application it is dismissed 1 . I had considered a determination on the papers in the alternative, but the written application and evidence was inconclusive. Further, being an unlawful premises, before making any order in favour of the landlord, I would need to consider any special circumstances of the matter as the Tribunal must not order the tenant to pay to the landlord any other sum by way of damages or compensation (see s 78A(3)(a)(ii) Residential Tenancies Act 1986 (“RTA”).

An initial case conference confirmed the tenants’ claims as seeking compensation and/or exemplary damages for the following claims: a. Failure of the landlord to meet its responsibilities (s 45 RTA), b. Quiet enjoyment (s 38 RTA), c. Retaliatory notice (s 54 RTA), d. Unlawful entry (s 48 RTA), e. Bond not lodged (s 19 RTA), and f. Outgoings (s 39 RTA).

By the time of the hearing, a further tenant claim regarding unlawful premises was raised after local council evidence was obtained (s 78A RTA). This was an aspect of the tenancy open to my own consideration and orders.

The tenants had directly advised the landlord of this claim by an email dated 20 September 2025.

When a premises is claimed as unlawful, and there are other related claims consideration of all failures as a result can be considered under the remedies available under s 78A. Those other claims, if proven, can form part of any calculation or as separate orders as may be appropriate (see s 78A(4)(a)(ii) RTA). 1 See s 92 Non-attendance at hearing after due notice that states at (1), Where notice of a hearing has been given to a party in accordance with section 91 and that party does not attend at the hearing, the Tribunal may hear and determine, or dismiss or adjourn, the matter in the absence of that party. Background

The premises is a downstairs self-contained one-bedroom “apartment” with a separate, excluded bedroom also on that level (used by others as permitted by the landlord). The upstairs is the home and primary residence of the landlord.

The property was built in the 1980s and public domain records show it last sold in May 2005. It is assumed that the purchaser at that time was the current owner.

In a letter to the tenants dated 17 September 2025, the Tasman District Council Compliance and Investigations Officer, Jodie Heywood wrote: In 2005, Council received a resource consent application to divide the two-storey house into separate tenancies. However, this application was withdrawn in 2007, and no formal approval was granted for the separation. Furthermore, there are currently no resource consents on Council file authorising a second dwelling at this property.

The letter also concurs with the view of this Tribunal, that is the downstairs “apartment” meets the definition of a dwelling. This was a residential tenancy arrangement.

This tenancy formed on 21 December 2020 and ended 2 June 2025.

Were the premises unlawful residential premises?

As already noted, the property is a building on two levels, with the upper level being the main house and the downstairs having been divided into two premises. The tenants were living in the main downstairs unit. A separate bedroom existed on that ground floor.

“Residential Premises” is defined in section 2 RTA 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”.

There is no dispute that the premises was being used as residential premises.

The relevant parts of section 78A of the RTA are as follows: 78A Orders of Tribunal relating to unlawful residential premises (1)This section applies in any matter where the Tribunal, on application by a party or otherwise on the evidence before the Tribunal in respect of any claim within its jurisdiction, determines or declares that the premises are, or were at any material time, unlawful residential premises. (2)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. ...

Subsections (3), (4) and (5) of section 78A set out remedies for landlord breaches of this section.

Section 36 of the RTA requires 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.”

The RTA therefore makes it clear that a landlord has an obligation to take all reasonable steps to ensure there is no legal impediment to a tenant living in a residential premises. Where this is not done the premises may be found to be unlawful and remedies awarded against the landlord.

Given the prior application then withdrawal of the resource consent application in 2007, it is assumed the owner was, or should have been, aware of the legal impediment to the use of downstairs as a second dwelling. The reason for the withdrawal of the resource consent is unknown but given the apparent structural inadequacies evident in the tenants’ submissions, some investment prior to consent might have been reasonably anticipated as a requirement.

What remedy should be ordered?

Section 78A(4) of the RTA covers the remedy that the tenants are seeking. (4)Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in accordance with this Act in relation to the matter,— (a)the Tribunal may order the landlord to pay to the tenant— (i)the whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful residential premises; or (ii)an amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct:

In addressing breaches of section 78A, the District Court has addressed the impact that breaches have had on tenants as well as the need to incentivise landlords to comply with legislation which sets standards for residential premises.

The ongoing issue of noise between the downstairs and upstairs (as well as from the separate single bedroom on the downstairs level) indicate a lack of sound proofing. Based on the videos/audio provided, the upstairs floor appear comprised of, at least in some parts, a wooden floor. The landlord also confirmed ongoing noise issues originating from downstairs.

The lack of secure entry between the apartment and the rest of the house was a problem. Using furniture as a barrier over a door has obvious complications in the need of an urgent exit during any emergency, as well as making security more of a challenge.

There is no evidence of appropriate firewalling between the premises and the rest of the house. The New Zealand Building Code (NZBC) Clause C/AS1, Part 4, "Control of internal fire and smoke spread," addresses this important requirement.

The resource consenting process would have ensured appropriate compliance with the above as well as anticipated and mitigated broader noise and privacy concerns, as well as matters such as smoke alarm placement, all issues raised by the tenants.

There were clear failures by the landlord to maintain the premises during the tenancy. The most concerning was the occasional flooding events during heavy rainfall. At such times, the leaking into the lounge, primarily via a ceiling light to the lounge floor had both safety (electrical) and health risks. The loss of amenity claimed by the tenants in having to reconfigure how they used that area was proven.

The landlord failure to repair the above was due to her claimed financial pressure. Rent was not increased during this tenancy. That was a decision of the landlord. Regardless, she was receiving an income from rent and should have resolved it at the time. An increase in rent in line with the market during the tenancy may have assisted with any cashflow constraints as claimed.

What is not in contention is that the premises were unlawful. The Tribunal is satisfied that the downstairs area was used as a separate residence and that there is no resource consent for its use as a separate dwelling.

The absence of resource consent means the premises are unlawful residential premises under section 78A RTA (see Tenant v Presland and Co Trustee Company NZTT 4290197; AD v Gao NZTT North Shore 4260212).

When I consider the impact the unlawfulness of the premises, I see a correlation between many claims of the tenant and issues that would more than likely have been addressed through a completed consenting process. The tenants’ quiet enjoyment was interfered with due to little or no noise protection (this impacted all occupants, but the claim for determination here is the tenants). The unlawful entry claims reflect the lack of demarcation and secure access. The electricity was never accurately split between the dwellings, with a further problem being the tenants were unable to self-manage their electricity supply with reasonable access to the power board for any RCD reset (the single power board was upstairs and not always accessible). That said, I consider the 50/50 split was a reasonable approximation given the separate occupancies and use.

The landlord also failed to lodge the bond.

I consider the breach regarding ss 36 and 78A far exceeds “technical” breaches. I would consider a technical breach to be one where the property was compliant with council regulations but had not been “signed off”. That is not considered the case here. There were further unlawful acts in the failure to lodge the bond correctly and a failure to maintain when a recurring leak after rainfall was known.

In Harding v Caroto [2023] NZDC 5981, Honour David J Clark found that calculating the amount of rent refund that is appropriate cannot always be done based on percentage; sometimes, such as where the tenancy in question was long and the breach was technical, a percentage refund would place an unreasonable burden on the landlord [45]. In these situations, His Honour preferred to measure the nature of the breach against the benefit of the utility considered against all the relevant circumstances, including the length of the tenancy.

Zowitskey v Hemmings [2020 NZTT North Shore 4257512, 4264964, considered applications in which the tenant occupied the lower level of a two- storey house. The change of use was not consented by council and the premises did not have a consented kitchen: $7,100.00 was refunded to the tenant. Rent reduction

In assessing the amount of rent reduction to award, I must consider the circumstances of this case, including the landlord’s and the tenant’s motivations for renting the property, the respective benefits received by each of the parties, the detriment suffered by the tenant as a result of the breach, the purpose of section 78A of the RTA in ensuring landlords do not unfairly profit from skirting their regulatory obligations, and the public interest in discouraging unlawful tenancies.

When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.

The landlord has failed in meeting a number of obligations. I deal with these as part of the consideration of rent return. While Caroto reinforces the need for care regarding any percentage discounts, that caution reflects more technical breaches. I consider the landlord failures in this tenancy were material and with a detrimental consequence on the tenants.

I have also been mindful of the impact on the landlord. I accept noise was 2- way and she experienced problems during this tenancy too. However, steps to mitigate those were more within her control than the tenants. I have also considered the flat rent per week for the tenancy period. Without these considerations I would likely have considered a great monetary order appropriate.

Having considered the facts and circumstances of this case against the relevant regulatory framework and relevant current New Zealand case law, I arrive at the conclusion that in this case 10% of the rental paid should be refunded to address all landlord failures proven.

According to my calculations the tenancy lasted just over 232 weeks At $320.00 per week rent, the total rent paid would have been $74,285.71. A ten percent refund is calculated against this amount, being $7,428.57.

I have considered that sum ordered and tested it against what an alternative monetary order based on each landlord breach might total. In doing this, I am satisfied the final outcome either way is similar, and the sum awarded is considered fair. Filing fee

Because [The party] and [The party] have substantially succeeded with their claim I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 5235672 — net $7,455.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund: Unlawful premises	$7,428.57	Rent refund: Unlawful premises
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$7,455.57
Total payable by Landlord to Tenant	$7,455.57

The tenants had directly advised the landlord of this claim by an email dated 20 September 2025.

The property was built in the 1980s and public domain records show it last sold in May 2005. It is assumed that the purchaser at that time was the current owner.

The letter also concurs with the view of this Tribunal, that is the downstairs “apartment” meets the definition of a dwelling. This was a residential tenancy arrangement.

This tenancy formed on 21 December 2020 and ended 2 June 2025.

Were the premises unlawful residential premises?

There is no dispute that the premises was being used as residential premises.

Subsections (3), (4) and (5) of section 78A set out remedies for landlord breaches of this section.

What remedy should be ordered?

The landlord also failed to lodge the bond.

Because [The party] and [The party] have substantially succeeded with their claim I have reimbursed the filing fee.

Tenancy Tribunal case 5235672 — Tenancy dispute at 18 Sunrise Valley Road (downstairs), Upper Moutere, Upper

At a glance

Tenancy Tribunal case 5235672 — Tenancy dispute at 18 Sunrise Valley Road (downstairs), Upper Moutere, Upper

At a glance

Award balance

Claims & awards

Order

Reasons

Were the premises unlawful residential premises?

What remedy should be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Were the premises unlawful residential premises?

What remedy should be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions