Published tribunal order
Tenancy Tribunal case 5239195 — State of repair
Decided 1 Aug 2025 · Published 1 Aug 2025 · Application 5239195
- State of repair
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
- Phyliss Cooper and George Cooper must pay [the tenant] $21,000 immediately calculated as shown in the table below.
- The tenant’s claims are otherwise dismissed.
Reasons
- All parties attended the hearing.
- The tenant claims compensation, exemplary damages and rent repayment on the grounds that - • The premises were unlawful residential premises. • The landlords failed to comply with their obligations relating to the condition of the premises. • The landlords entered the premises unlawfully. • They interfered with her quiet enjoyment of the premises. Background
- The landlords bought the property at [redacted] in 1995. The buildings on the land were a large workshop, a smaller structure attached to the workshop that was used as a lunchroom and office and another separate building comprising storerooms and a flat that the landlords said had consent for use as a dwelling.
- This case is concerned with the smaller structure that is attached to the workshop which I will call the premises.
- The landlords used the workshop and storerooms for their carpet laying business. After they retired, they used it for storage, including for keeping their caravan.
- The landlords carried out work to the flat, including putting in a toilet and shower, so that it could be occupied as a separate dwelling. They said that the builder who carried out the work dealt with the building consent for that work. When that work was completed, the landlords put a tenant in the flat.
- The premises had a toilet, shower room and cooking facilities when the landlords bought the property. It also had a room which had been used as an office.
- The landlords insulated the walls and ceiling of the premises with pink batts. Two large sections of the roof are covered with translucent material, and they were not insulated with batts. The landlords said that they were insulated with a plastic material that they said provided good insulation. There was no other evidence of that.
- The tenant moved into the premises in April 2018. She gave notice in April 2025 and the tenancy ended at the end of April. Unlawful Residential Premises
- The Tribunal may declare premises to be unlawful residential premises under s77 of the Residential Tenancies Act 1986 (the Act).
- 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 s36 of the Act (failure to take all reasonable steps to ensure that there is no legal impediment to occupation for residential purposes) or 45(1)(c) of the Act (failure to comply with legislation relating to the health and safety of the premises).
- Where the Tribunal declares the residential premises to be unlawful, the Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may make an order of this kind on its own initiative which means that it is not necessary for the tenant to ask for it in their application.
- The landlords accept that the premises are not consented for residential occupation. They say that they did not consider the need for it at the time.
- The tenant produced a copy of a plan taken from the council property file showing the buildings on the property. It shows the flat described as such. The workshop is shown described as such. The premises off to the side of the workshop is shown as part of the workshop with no dividing wall between the two areas.
- Because the premises were not consented for residential occupation they cannot lawfully be occupied for residential purposes. The landlords should have notified the local authority of their proposed change of use of the premises and the council would then have considered what was required for the change, including any work that was needed to comply with residential building standards.
- I am satisfied that the landlords have caused or contributed to the unlawfulness of the tenant’s occupation of the premises due to breach of both s36 and s45(1)(c) of the Act.
- In relation to s36, they knew that the flat was consented for residential use, and they understood that they needed building consent for the work that was needed to make it fit for residential use. They had no reason to think that the premises were consented for residential use. It was associated with the workshop so it should have been obvious to them that they weren’t. I note that the landlords have built their own homes in the past, and they have owned other properties including rental properties. It is incomprehensible that they would not consider the legal implications of changing the use of the premises from commercial to residential. It would have been a simple matter for them to check the requirements with the council.
- They said that the work they carried on the premises did not need building consent. That may be correct, but it completely avoids the obvious point that the requirements for commercial premises differ from those for residential premises. It is likely, in my view, that work requiring a building consent would have been required for a change of use to residential. The council would likely have required a fire wall between the workshop and the premises, and I doubt that the translucent panels in the roof would have been acceptable. They are, in effect, large sky lights. There are regulations in relation to skylights to ensure that the temperature inside the premises can be regulated in summer and winter.
- It cannot be said in these circumstances that the landlords took all reasonable steps to ensure that there was no legal impediment to occupation of the premises for residential purposes. In fact they took no steps.
- I am also satisfied that the premises did not comply with legislation relating to the health and safety of the premises. I have referred to fire safety and to thermal regulation of the premises due to the translucent panels.
- It follows that the premises were unlawful residential premises as defined in the Act.
- In terms of remedy, the starting point is that the landlord should repay the rent that the tenant has paid. The Tribunal may deduct from that a sum that the Tribunal considers fair due the “special circumstances” of the case. I take that to mean the circumstances pertaining to the case rather than something out of the ordinary.
- The tenant was initially happy with the premises, and she stayed in them for seven years. She has made claims regarding the condition of the premises, and these are dealt with below. Those claims aside, the tenant has had the use and benefit of the premises at a fairly modest rent. In many respects, they were suitable for residential use.
- In my view it is fair to make a substantial deduction from the starting point of refunding all the rent paid by the tenant. I find that the deduction should be in the order of 75%. In round figures that reduces the rent repayable to $15,000. This award is needed to encourage landlords to comply with their legal obligations regarding the health and safety of premises and to ensure that they do not reap the benefits, or at least the full benefits, of failing to do so. The Condition of the Premises
- Under section 45 of the Act, a landlord must provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health and safety.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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.
- The tenant’s main complaints concerning the condition of the premises are that they were cold and damp in the colder and wetter months and too hot in the warmer months and that water leaked through the roof and into the premises.
- As I have said, the landlords maintain that the translucent roofing material was insulated. I accept that something may have been done to improve the thermal quality of the roofing, but I do not accept that it was up to standard. The R value required is R3.3 and the tenant having raised the issue, the landlords are required to provide evidence of the material’s R value. No such evidence was provided.
- The tenant described extreme condensation inside the premises and a build up of mould and even moss which she had to remove from time to time. The situation improved to some extent when the landlord installed a heat pump after a year of the tenancy. The tenant also used a dehumidifier. I note that the landlord agreed that the tenant often had her windows open and so there is no suggestion that the tenant contributed to the dampness by failing to ventilate the premises.
- The Housing Improvement Regulations 1947 provide that every house must be free of damp. I find that the premises did not comply with that requirement because, despite the tenant’s best efforts, the premises could not be kept free of damp. It is likely that the translucent roofing contributed to that.
- I accept the tenant’s evidence that the roof leaked, and that the landlords were aware of it. The landlords denied both the leaking and the knowledge, but the tenant produced photographs showing obvious evidence of water damage to the ceiling and to her furniture. The landlords were inside the premises from time to time and it must have been obvious that the rood was leaking. I accept the tenant’s evidence that the landlords downplayed the leaking, saying that it happened only occasionally.
- I find that the tenant is entitled to compensation for these breaches of s45 of the Act. The Tribunal can look back up to six years. The rent increased twice during the tenancy and the average rent was approximately $166 per week. I assess compensation at six weeks rent per year. There would have been times when the living conditions in the premises were quite unpleasant, and the tenant often stayed elsewhere when she could. For six years the award comes to $6,000.
- Having awarded compensation and a rent repayment, I find that there is no need for an award of exemplary damages. Unlawful Entry and Breach of Quiet Enjoyment
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
- 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.
- 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".
- I will deal with these two claims together because they are closely related.
- The tenant referred to three occasions when the landlords entered the premises unlawfully.
- One involved a plumber who went to the premises to repair a soil pipe. He had expected to work only outside the premises, but he found that he needed to replace the toilet to complete the work. The door was unlocked so he entered the premises to complete the work. The tenant came home and found him working there. The landlords did not authorise him to enter the premises.
- Strictly, the plumber was the landlords’ agent and so they are responsible for his actions. But I do not think that the circumstances warrant any penalty for the landlords and so I disregard it.
- I accept that there were two other incidents when the landlords entered the premises unlawfully. Once when the landlords blamed the tenants’ animals for damage to the premises when the tenant says that they must have entered the premises unlawfully to see the damage. The landlords say that they saw it on a previous occasion when they were in the premises lawfully. I don’t accept that the landlord would not have said something about it at the time and so it is more likely to have happened when they entered unlawfully.
- There was also a time when the landlords were painting the workshop and the premises which caused the tenant a considerable amount of disruption and loss of privacy. It was not a quick job because the landlords did it largely themselves. They sprayed the outside of the premises with an astringent solution which entered the premises because the windows were not fully closed. I accept that the tenant did not receive proper notice of what the landlords intended doing. The tenant’s dog was affected but, thankfully, not seriously.
- My impression is that the landlords were casual in their approach to the tenants’ privacy and right to quiet enjoyment. The tenant said that the landlords told her at one time that it was their property, and they could do as they like. Whilst I accept that the landlords were free to use the property, other than the premises, freely, they still had to have respect for the tenant’s right to have quiet enjoyment in her use of the premises.
- I find the landlords did enter the premises unlawfully and interfered with the tenant’s quiet enjoyment of the premises. I do not find that it amounted to harassment and so no award on exemplary damages is warranted. An award of $1,000 compensation is appropriate. Filing Fee
- The tenant has been substantially successful and so I have awarded her the filing fee. Suppression
- For the same reason I have granted the tenant name suppression.