Published tribunal order
Tenancy Tribunal case 5302762 — Tenancy dispute at 36A McBreen Avenue, Northcote, Auckland 0627
Decided 14 Nov 2025 · Published 14 Nov 2025 · Application 5302762
- Boarding House
- Compensation
- Exemplary damages
- Filing Fee
- Harassment
Order
- [The landlord/s] must pay [The tenant/s] $1,719.95 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing. The landlord’s wife attended with him as a support person. The tenant’s husband attended with her as a support person 1 .
- This claim involves the tenancy of a separate unit above the landlord’s garage that began on 10 July 2023 and ended on 4 July 2025.
- The tenant has filed claims seeking orders as follows: a. Refund of her bond paid of $1,000; b. Reimbursement of $141.95 paid for electricity; c. Reimbursement of 143.09 for wheelie bin hire; and d. Compensation for breach of quiet enjoyment and exemplary damages for harassment by the landlord. Jurisdiction
- There is a preliminary issue that must be determined at the outset.
- The landlord claimed at the start of the hearing that that the Tribunal does not have jurisdiction to hear this claim.
- Section 77(1) RTA provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies.
- Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
- Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means 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 tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or 1 I note that the “flat/house sharing application” that was produced in place of a tenancy agreement includes the tenant’s husband’s name but the document does not purport to be an agreement, was not signed, and the tenant’s husband was not in New Zealand at the start of the tenancy and was not involved in negotiations. The tenant brought this application in her name only and I do not consider that there is any basis to add her husband as a “tenant”. created by any enactment; and, where appropriate, also includes a former tenancy tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement
- Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act.
- Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
- Section 5(1)(n) RTA provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family
- The landlord said this was not at tenancy covered by the Residential Tenancies Act 1986 (RTA) as the tenant was a flatmate and that the arrangement was recorded in a flat/house sharing agreement. He says that the claim is excluded under section 5(1)(n). The Disputes Tribunal has jurisdiction over such claims.
- The tenant says that she found the tenancy advertised on Facebook Marketplace. She produced a copy of the advertisement that is titled “Flat mates/Granny Flat”. The description states “Separate house for rent price includes power, water, washing machine...”. She explained that the property is a separate dwelling situated over the landlord’s garage, with separate entrance, kitchenette, bathroom and laundry.
- The landlord agreed with the tenant’s description but said that the tenants were welcome to use the pool or tools in the garage during the tenancy.
- When determining whether the Act is excluded, the Tribunal considers the particular circumstances and the substance of the agreement between the parties rather than the labels they have applied.
- In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
- The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house-sharing agreements.
- The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.
- The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
- The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant.
- The circumstances in this case are almost identical to the facts in Harding, although in this case the granny flat was actually part of a separate building. While the parties cooperated as neighbours (at least at the start of the tenancy) the premises were quite separate and neither party had the right to enter the other party’s property without permission.
- I find that the Tribunal has jurisdiction to hear the tenant’s claim. Bond
- The tenant said that she paid a bond of $1,000 on 3 July 2023, and then started paying rent in advance as soon as the tenancy started on 10 July 2023. She seeks the refund of their bond now that the tenancy has ended.
- The landlord said that he did not seek a bond from the tenant but instead sought a deposit, and that the tenant then paid rent again when she moved in. He said that after reviewing the rent records the tenant had over paid rent by two weeks.
- I do not consider that it is necessary for me to determine whether the tenant paid a bond or has overpaid rent. At the hearing the landlord agreed that this amount should be refunded to the tenant.
- I have therefore made an order, by consent, that the landlord refund the tenant the sum of $1,000. Electricity
- The tenant said that they agreed at the outset that electricity would be included in the rent but that on 3 February 2025 the landlord said that they would have to pay additional amounts for power. The tenant produced copies of correspondence on this issue.
- The tenant said that the landlord then sent them a calculation for power based on usage on 9 June 2025 in the amount of $141.95 which she paid despite not considering that she had any liability to do so (having received advice from Citizens Advice Bureau), but as they had agreed power would be included in the rent she now seeks reimbursement of this amount.
- The landlord did not dispute that the parties had agreed that electricity would be included in the rent (as there was no separate meter or check meter installed at the outset) but said that this was on the basis that the tenant and her husband were two working professionals and at work during the day. He said that when the tenant had a baby over the Easter period in 2024, their electricity bills increased.
- The landlord said that he installed solar power and a check-meter and attempted to discuss with the tenant how to most fairly and efficiently invoice the tenant for power, but that they could not reach agreement, and so he eventually charged the tenant for the power used based on the check-meter (which did not include solar power or fixed charges).
- The “flat/house sharing application” that was produced by the tenant makes no reference to utilities and in fact is not signed or dated and is an “application” rather than an agreement. The landlord explained that it was not really an agreement as such but more a means of obtaining personal details from the tenant.
- The advertisement for the property clearly states that the rent was to include power. The parties operated on this basis from the start of the tenancy in July 2023 until the landlord sought to alter the arrangement approximately 18 months later.
- The parties had agreed that power was included in the tenancy. There was no proviso to that agreement. It was not open to the landlord to unilaterally change the terms of that agreement and start charging the tenant for power.
- The landlord said that the tenant had exceeded the number of people at the property when she had her baby, but I am not persuaded by this argument. The “flat/house – sharing application” makes no reference to a maximum number of people that can reside at the property.
- The landlord was responsible for electricity charges. I order that the landlord reimburse the tenant in the amount of $141.95 for electricity paid. Rent increase
- Section 24(1)(e) RTA provides that the rent must not be increased within 12 months after the date on which the last increase took effect.
- The parties agreed that the rent had originally been $500 per week and was raised to $550 per week on 16 January 2025. This was the first rent increase since the tenancy began and the tenant agreed that appropriate notice had been given.
- However, the tenant said that as of 28 January 2025 the landlord began insisting that she pay rent in cash, as otherwise she would have to pay an increased amount of $600 per week. She said that she had previously always paid by bank transfer.
- The tenant said that she did not want to have to pay the increased amount and so had to keep withdrawing cash which was stressful and inconvenient as she was working full time and had a baby. She said that she continued to pay the sum of $550 per week.
- The tenant said that the landlord’s actions amounted to an increase in rent within a 12-month period and also amounted to a breach of quit enjoyment/harassment.
- The landlord said that it was more convenient for him to receive the rent in cash.
- As the tenant has continued to pay the same amount of rent, rather than the increased amount, I do not consider that there has been a further rent increase. However, I consider this issue further in the section on “harassment” (considered below). Rubbish bin
- The tenant said that the landlord said that she could share their bin and that they arranged to take turns putting it out, but the landlord soon asked that she take it out and said that he would then bring it in.
- An issue arose when the tenant forgot to take the bin out and the bin was not emptied. The landlord insisted that the tenant take the rubbish to the dump but the tenant said that she had no way to do so, and that after this point she was asked for arrange for her own bins. She seeks reimbursement of $143.09 for six months of bin collections.
- The landlord said that at the time of this tenancy the Council did not include bin collection in rates and that it was usual for residents to buy bags and tags for rubbish collection. He said that he arranged and paid for a wheelie bin and collection though a private company and was initially happy to share this bin with the tenant but this was not part of the tenancy agreement.
- He said that it was frustrating that the tenant forgot to take the bin out but that he did not take the issue further and instead paid to have the contents of the bin taken to the dump.
- The RTA does not contain a specific requirement that landlords provide rubbish bins or rubbish disposal for tenants. However, section 45(1)(c) does require landlords to comply with all building, health and safety requirements that apply to the premises. These may include local council bylaws or regulations, which in many instances require that properties have adequate facilities for the disposal of rubbish.
- In this instance however the local council did not (at least during this tenancy) provide bins and bin collection over and above the tag system. These bags and tags are not the responsibility of the landlord.
- I am not satisfied that there was agreement between the landlord and tenant that the landlord would provide bin collection services. While sharing a bin worked, for a period of time, in the absence of a clear agreement I consider that the tenant should be responsible for any further rubbish disposal costs.
- The tenant’s claim in respect of the rubbish is dismissed. Harassment
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- 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. See section 38(3) and Schedule 1A RTA.
- 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.
- 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. See section 109(3) Residential Tenancies Act 1986.
- The tenant said that she found the landlord’s texts and WhatsApp messages to be a constant source of stress. She said that the communications around the rent having to be paid in cash, the bins and the utilities amounted to harassment.
- The landlord admitted to being direct in communication but said that he had not harassed the tenant.
- I have carefully reviewed all of the text and WhatsApp messages that were filed in evidence.
- I agree that the landlords’ communication in respect of the bins and utilities was very direct, even curt in some instances. However I do not consider that the communication on these issues is at a level that amounts to a breach by the landlord of their obligations. I am also mindful that the parties communicated both as neighbours and as landlord/tenant and the communications must be viewed with that in mind.
- I take a different view in respect of the landlord’s communication with the tenant regarding the payment of rent in cash.
- Until January 2025 the tenant had made payments by bank transfer. There was no basis for the landlord to charge a premium or alter that amount if the tenant did not start paying in cash.
- However the landlord insisted the tenant do so, as recorded in their WhatsApp communication as follows: a. Landlord - 28 January 2025: “Hi as above you will need to get the money out of the machine and hand it to me you can do it every second week that’s to keep it at $550 per week” b. Tenant – 3 February 2025: “... sorry I don’t have time to go machine so I am going to do bank account. Its quite hard for me to go machine every week”. c. Landlord – 3 February 2025: “That was the rent price when you moved in 2 years ago have a look yourself I said to make it $500 cash which you never did the rent hasn’t increased in over two years if you want to transfer its $600 per week or $1100 (sic) per fortnight...”
- The result of the landlord’s communication was that the tenant felt that she had no option but to pay rent in cash or an additional amount would be charged. This caused the tenant inconvenience and stress as she endeavoured to arrange cash payments.
- While I consider that the landlord’s communications fall just short of being harassment (for which exemplary damages would be available) I do consider that it amounts to an interference with the tenant’s reasonable peace and a breach of section 38(2) RTA. The amount of rent was fixed and cannot be subject to change depending on the method of payment. The tenant should have been able to continue her usual payments by bank transfer without these demands from the landlord.
- I consider that the tenant is entitled to compensation for the inconvenience and stress caused by the landlord’s breach. I consider the sum of one week’s rent to be reasonable compensation, and order that the landlord pay the sum of $550.00 to the tenant. Filing fee and name suppression
- The tenant has been substantially successful in her claim and so I have reimbursed the filing fee.
- The tenant did not seek an order for name suppression. The landlord is not entitled to an order for name suppression as the has not been the substantially successful party.