Published tribunal order
Tenancy Tribunal case 5244960 — Tenancy dispute at Unit/Flat Flat 1, 82 Pah Road, Papatoetoe, Auckland 2025
Decided 30 Jul 2025 · Published 30 Jul 2025 · Application 5244960
Mixed / unclear
Order
- The tenant must carry out the following work to the premises, which must be completed by Friday 15 August 2025: a. Remove the carport extension.
- As an alternative to compliance with Order 1, the tenant must pay the landlord $950.00 by Friday 15 August 2025.
- If the tenant fails to comply with either Order 1 or 2 above, then the landlord may undertake the work and charge the tenant the costs of this work up to $950.00. These costs may be treated as rent in arrears and enforced accordingly.
Reasons
- The landlord has applied for a work order for removal of an extension to the carport. This was constructed by the tenant about 5 years ago, without the landlord’s written permission.
- At the hearing on 26 July 2025, the Tribunal requested further information from the landlord about the cost of removing the structure and the cost of making it structurally safe and compliant with the Building Code.
- The Tribunal also requested that the landlord check their internal notes to see whether any kind of verbal agreement or verbal consent for the carport extension had been recorded.
- The tenant provided comments in response to the new information. Background
- The landlord conducted an inspection on 5 December 2024. This noted that the tenant had extended the carport. It was noted that the housing support manager would contact the tenant to discuss removal.
- In a letter dated 20 March 2025, the landlord declined permission for the modification. The landlord was concerned about the potential risks to residents and visitors. The construction was not in accordance with the Building Code and had not been completed in a tradesperson-like manner. A diagram at the end of the letter provided an example of proper construction. This included a front wall top plate, side wall top plate and a bracing strap, features not included on the extension.
- The letter also included a photograph of the original carport and the extension. It noted the lack of stormwater drainage (no gutter or downpipe). The roofing structure was said to be inappropriately supported (the supports or posts had been attached to the sides of the beams). I also note that, reviewing the photographs, it appears the extension was not supported by or attached to the house.
- A licensed building practitioner visited the property after the hearing and estimated the cost of removing the extension as $964.35. The landlord was advised that: The existing illegal structure would not be able to be brought to legal compliance. To bring the structure into compliance, we would require a design by an architect for building consent. The illegal carport is attached to another building and increases the total area over 30m². The illegal structure materials cannot be re-used as we would need a new design and therefore new products to fit the design and compliance. Preparing the building consent application will require detailed design drawings and structural report and calculations including all relevant details such as materials, connection methods, flashings, drainage, waterproofing, and other construction specific requirements. The estimate cost only on the design, drawings, consent will exceed $5,000.00 this excludes any material or hidden cost.
- The tenant accepts that written permission was not obtained but says that their housing manager gave verbal approval when the extension was built. The carport was said to be essential for the safety of the tenant’s vehicle, and for providing storage space.
- The tenant also says that the landlord did not object to similar alterations made by other tenants in the area, although no details have been provided. Relevant Law
- The Tribunal has jurisdiction pursuant to section 77(2)(l) to order a landlord or tenant to do anything necessary to remedy the breach by that party of any provision of the tenancy agreement or of the Act.
- The Tribunal may make a work order pursuant to section 78(1)(e) of the Act to enforce compliance with the tenancy agreement.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order.
- A work order may also authorise the landlord to undertake the work and charge the tenant the costs of doing the work if the tenant fails to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be treated as rent in arrears and enforced accordingly.
- Under the tenancy agreement, the tenant had an obligation to obtain written permission from the landlord before building structures, such as sheds, sleepouts, or garages on the premises.
- There is a similar requirement under section 42 of the Act, which provides that the tenant must not make any renovation, alteration, or addition to the premises except in accordance with the tenancy agreement or with the prior written consent of the landlord. The landlord cannot withhold consent to a “minor change” (section 42B) and cannot unreasonably withhold consent generally (section 42A).
- The Building Act 2004 provides that all building work must comply with the Building Code (section 17). Building work must not be carried out except in accordance with a building consent, although some work is exempted (sections 40-41).
- Pursuant to clause 18A of Schedule 1 to the Building Act, a carport that is more than 20m² but less than 40m² does not require a building consent, if the construction work is carried out or supervised by a licensed building practitioner. This provision has been in force since 31 August 2020. Previously, a building consent was not required for a carport not exceeding 20m² in floor area. Analysis
- The tenant has explained that they spent a significant amount of money on the installation, and that, over the years, the carport has been inspected, and no issues were raised. The landlord has checked its records and can find no evidence of the conversation said to have occurred with the previous housing manager.
- The equitable doctrine of estoppel provides that, where a party has made an unequivocal promise or assurance to another party which is intended to affect the legal relations between the parties, if the promise is acted on, the promisor is bound by it unless the promisee is given a reasonable opportunity to resume their original position.
- One of the issues here is that, even if the landlord represented that the carport could remain until the tenant left, some of the tenant’s evidence and emails suggest that the housing manager gave consent after the extension was constructed, and not before (“When we initially installed the carport, the first officer who inspected our home informed us that we could keep it, provided we remove it when vacating the premises” - email dated 3 March 2025).
- It the tenant changed her position before any representation was made, there is no estoppel. Further, the tenant has been given a reasonable opportunity to resume her original position, given that the landlord first requested removal on 9 December 2024. I am not satisfied that the landlord is prevented from requiring removal of the carport extension.
- The tenant is in breach of the tenancy agreement because the landlord’s prior permission was not obtained. The available evidence indicates that the structure does not comply with the Building Code. In my view, this means that the landlord did not unreasonably withhold consent for the alteration.
- There is an ambiguity in the building practitioner’s advice about the floor area of the carport. It is unclear whether the extension itself is more than 30m² or whether the extension means that the entire carport area (i.e., the original carport and the extension) exceeds 30m². Building work for a 30m² carport would not require a building consent today. When the extension was added in 2019, a building consent would have been required, because the total floor area of the carport with the extension was more than 20m².
- I find that the carport extension does not comply with the Building Code and would probably have required a building consent when it was built. The landlord has received advice that retaining the structure would also involve a building consent and significant cost. The Tribunal does not have the building expertise to question that advice, beyond noting the ambiguity discussed above. I consider that the structure is non-compliant and must be removed.
- The tenant can either remove the structure or comply with the alternative money order. If the tenant does neither, the landlord can remove the structure and recover the cost as rent due.