Published tribunal order
Tenancy Tribunal case 5310499 — Tenancy dispute at Unit/Flat 3, 87 Majoribanks Street, Mount Victoria,
Decided 21 Aug 2025 · Published 21 Aug 2025 · Application 5310499
- Boarding House
- Healthy homes
- Smoke alarms
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 Tenants’ names and identifying details.
- The landlord is to pay the tenants $28 being the filing fee on this application.
- The Tribunal makes the following orders by way of declaration in relation to the tenancy agreement between the landlord and the tenants: a. The tenants are entitled to use the driveway servicing the property located at 87 Majoribanks Street, Mount Victoria, Wellington (“the driveway”) for the purposes of ingress and egress on foot and/or with bikes which may be walked in and out of the driveway but not ridden in the driveway; b. The tenants are entitled to access the entrance to flat 3 from the driveway via the stairs at the end of the driveway into the courtyard outside the entrance door to flat 2 (“the courtyard”) and via the second set of stairs leading to the entrance door to flat 3 (access via this route is referred to as “the driveway entrance”); c. The tenants are entitled to have items such as parcels and other deliveries that cannot be placed in the mailbox delivered to flat 3 via the driveway entrance; d. The tenants are entitled to access and use the shared storage space located off the courtyard; e. The use of the driveway entrance including the courtyard by the tenants is solely for the purpose of ingress and egress to the shared storage space and flat 3 and they are otherwise not entitled to use the courtyard and driveway entrance for other purposes; f. The tenants must ensure that when exercising the rights of ingress and egress through the driveway entrance, and access to the shared storage space, they comply with section 40(2)(c) Residential Tenancies Act 1986 (RTA) and do not cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, which includes the driveway entrance and the shared storage space facilities; g. The landlords must comply with section 45(1)(e) RTA and take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenants in the use of the premises, which includes the driveway entrance and the shared storage space facilities; h. Reference to “tenants” in this order includes other lawful occupants of flat 3 and visitors to flat 3 with the permission of any tenant or occupant noting that section 41 RTA provides that a tenant shall be responsible for anything done or omitted to be done by any person (other than the landlord or any person acting on the landlord’s behalf or with the landlord’s authority) who is in the premises with the tenant’s permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant. i. If necessary the landlord is directed to liaise with the tenants of flats 2 and 3 for the purposes of facilitating an agreement about reasonable hours of access to the storage space off the courtyard.
- Leave is granted to either party to refer the matter back to the Tribunal for the purpose of any further orders that may be necessary in respect of the direction in order 3(i) above.
- By 31 August 2025, the landlord is to remove the gate and ‘No entry’ sign that has been installed at the foot of the stairs from the driveway into the courtyard and take all reasonable steps to ensure that the steps are not blocked in any way so as to obstruct the tenants from using the driveway entrance;
- As an alternative to compliance with the work orders in Order 5, the landlord must pay the tenant compensation of $100 for every week or part week that the work order is outstanding from 1 September 2025 to the date the tenancy ends or the work order is completed, whichever event first occurs. This amount may be set off against rent payable.
- If the landlord fails to comply with Orders 5 and 6 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $300. These costs may be set off against rent payable.
Reasons
- Both parties attended the hearing with Rosina Lang attending for the landlords.
- The tenants have applied to the Tribunal for orders clarifying their rights under the terms of the tenancy agreement signed with the landlord which they say the landlord has unilaterally changed. They want their rights reinstated. The two issues in dispute for the Tribunal to determine are: a. Are the tenants entitled to access the entrance door into flat 3 from the driveway to 87 Majoribanks Street (“the driveway”) and via the courtyard outside flat 2 (“the courtyard”) or is the landlord able to stipulate that the tenants may not access the driveway or the courtyard; b. Are the tenants entitled to use the shared storage area off the courtyard previously provided by the landlord or is the landlord able to deny access to this area? Background facts
- The premises are one of three self-contained flats in a building located on the corner of Majoribanks and Port streets. Each flat is labelled 1, 2, and 3. Flats 1 and 2 are on the ground floor, and flat 3 is on the first floor. All three flats may be accessed from the driveway servicing 87 Majoribanks Street (‘the driveway”). The entrance door to flat 1 is located a third of the way down the driveway. Flat 2’s entry door is off the small courtyard at the foot of some stairs located at the end of the driveway. An entry door to flat 3 is accessed via another set of stairs off the same courtyard. This means the flat 3 occupants can walk to the end of the driveway; turn left down the steps to the flat 2 courtyard; turn right up some steps off the flat 2 courtyard to the first-floor level deck and the entry door to flat 3 (“access via this route is referred to as “the driveway entrance”).
- Flat 3 can also be accessed from a door off Port Street without having to use the Majoribanks St driveway.
- Mailboxes for all three flats are located at the Marjoribanks driveway entrance.
- Flat I has the right to park a vehicle on a small deck area at the front of the property. Flat 2 has the right to park a vehicle on the driveway. Flat 3 has no parking at the premises and must park on Majoribanks or Port Streets. These carparking rights are not recorded in the tenancy agreement for flat 3 but they accept that these are established rights. The Tribunal does not know if the carpark rights are recorded in the tenancy agreements for flats 1 and 2.
- Flat 3 has the exclusive right to use a small deck and washing line on the first level outside their door facing the driveway. Again, this is not specifically written into the tenancy agreement but is an established right accepted by all three flats. Flats 1 and 2 also have designated washing line areas.
- A shared storage space is located off the courtyard, adjacent to flat 2. This storage space has been available for the tenants of all three flats to use with the landlords’ permission. Therefore, there is an established practice that the tenants of all three flats may access and use the storage space.
- The current tenants of flat 3 bringing this application have occupied the premises since early to mid-2024. Initially, they were flatmates and not recorded as tenants on a tenancy agreement. However, when the previous tenants departed they took over as tenants and signed a tenancy agreement with the landlords. They understand it contains the same terms as the previous tenancy agreement.
- The tenancy agreement signed by the parties between 23-26 December 2024 provides for a fixed term tenancy commencing on 18 January 2025 and ending on 16 January 2026. It describes the premises as 3/87 Majoribanks Street and does not otherwise delineate the boundaries of flat 3. Therefore, the tenants expected that the way in which they used and accessed the property as flatmates under the previous tenancy agreement would remain the same. In that regard, the tenants, and occupants of flat 3 could access the flat via the driveway or Port St entrances.
- The tenancy agreement provides that the tenants may not keep bicycles stored inside the flat.
- The tenants continued to use the shared storage space for belongings as had been the practice since they became flatmates under the previous tenancy agreement in 2024. Rights to use the storage space are not written into the tenancy agreement, but are an established use with permission given by the landlord. A sign placed inside the door to the space by the landlords advises users to take their belongings and clean up when they leave.
- After this tenancy commenced on 18 January 2025, the flat 2 tenancy changed with new tenants from on or about 23 January 2025. The following weekend two new flat mates shifted into flat 3. Their belongings included 2 bicycles and some pot plants which they brought in through the driveway entrance. They say that one of the flat 2 occupants came out complaining in an aggressive manner about their use of this entrance and making too much noise. Flat 2 then complained to the landlord.
- On 29 January 2025, the landlords emailed the tenants advising that flat 2 was unhappy about flat 3 using their private space (i.e. the courtyard). The landlord noted in the email as follows: the flat 3 house entrance is on Port St only; flat 3 should not go past the downstairs tenants with bikes or in person; the courtyard is flat 2’s private space and they do not want their car scratched. The landlords noted that bikes are not permitted inside the flat and suggested that flat 3 chain any bikes in the alleyway facing Port St; they asked that flat 3 respect other tenants’ rights to quiet enjoyment. The landlords also stated: “The communal storage space we currently provide as an extra for good tenants is for a few excess items you don’t want to store in the house. This area was never intended for daily or regular use.”
- The tenants responded to the landlords on 1 February noting that the new flatmates were moving in and, therefore, this may have caused more commotion than usual but it was an exceptional situation. They also set out their understanding that they may enter the premises from either Majoribanks or Port Streets acknowledging they use Port St primarily for regular access; that the driveway is a shared space which they would wish to continue using for quiet, respectful ingress and egress; it is unsafe to chain their bikes in the Port St alleyway because of the risk of damage or theft; this area is also right outside windows into flat 2; and the communal storage space is best for the bikes. They also indicated that they were happy to work with the landlord and other tenants to agree on any rules regarding hours of access via the driveway entrance and to the storage space.
- The landlords replied on 2 February reiterating that the designated entry for flat 3 is Port St only and it has been that way for 20 years; the driveway is not communal and is only to be used by the Flat 1 and 2 tenants because those tenants are entitled to have quiet enjoyment of their flats without having neighbours walk past their windows; the shared storage space is not a right but a space provided by the landlords as an extra for tenants provided they do not abuse the privilege and it will be taken away if it causes quiet enjoyment issues. The landlords noted that previous tenants had chained their bikes to the fence in the alleyway but advised the tenants that they are “welcome to put your bikes inside the house ...... on a tarpaulin....and take care not to damage the walls or property.” The landlords also suggested that flat 3 talk to flat 2 to work this out.
- The tenants say they tried to discuss the matter with flat 2 but flat 2 was unwilling to do so. Flat 2 claimed that the driveway, and courtyard space was their private space and they did not want flat 3 using the driveway, courtyard, or the shared storage space at all.
- In further communications between the tenants and the landlords, the landlords stated that they did not wish to get involved in the dispute; they had hoped that flat 3 would work something out with flat 2 to enable them to walk past the courtyard area but not on a daily basis. The landlords stated that they only rented “the top flat” to the tenants and the exclusive outdoor area attached to the flat is the upper deck to the washing line only; the storage area is not part of the lease and they would consider locking it if it caused problems.
- On or about 5 February 2025, the landlord installed a gate at the foot of the stairs between the driveway and the courtyard near flat 2. Subsequently a “NO Entry” sign was affixed to the gate. The landlords said they installed the gate to clarify the tenanted areas to all occupants of Flats 1, 2 and 3. They also later locked the storage space to prevent any tenants from using it stating that it is not specifically rented to any tenant as part of their lease and has historically been provided on an “ad hoc” basis. Flat 3 have continued to access the driveway entrance and the flat 2 occupants have tried to prevent this by placing obstacles in front of the gate.
- In or about April 2025, the flat 2 tenants indicated that they were amenable to flat 3 having access to the driveway and storage shed. Flat 3 advised the landlords accordingly but the landlords refused to unlock the storage shed or agree to any proposal allowing flat 3 to access the driveway entrance.
- In June communications, the landlords also advised the tenants that they cannot allow parcels/deliveries to be dropped at their door via the driveway entrance and these should be directed to the Port St entrance or to the tenants’ workplaces. The tenants advised that the Port St entrance does not have a secure area for leaving parcels and nor does the Port Street entrance have an identifiable address that can be used for deliveries. The tenants noted that deliveries were being left at the gate to the courtyard which means they are exposed to the weather and flat 2 tenants were often blocking the gate.
- The tenants complained to the landlords that flat 2 tenants had been hostile and causing noise late at night affecting flat 3. They asked for a meeting to discuss the problem. However, the landlords refused to get involved and stated that the situation could be resolved if flat 3 stopped using the driveway entrance.
- On 10 June, the tenants served a 14-day notice on the landlords complaining about the following breaches: enforcing new rules not in the original signed tenancy agreement; allowing flat 2 to act in an abusive manner and avoiding attempts at good faith discussion. They requested that the landlords remedy the situation by confirming that all new rules would be dropped and advising all tenants in writing. Tenant case
- The tenants want the status quo when they signed their tenancy agreement reinstated, including use of the driveway entrance and shared storage space.
- The tenancy agreement describes the premises as 3/87 Majoribanks. It is implicit in the legal address for the premises that the flat 3 tenants may access the flat via the driveway off Majoribanks St. The mailbox for flat 3 is alongside the mailboxes for flats 1 and 2 at the top of the driveway which further supports the arguments that they may use the driveway.
- The tenancy agreement does not say that flat 3 cannot use the driveway entry.
- Visitors, and couriers have assumed that flat 3 may be accessed from the driveway.
- There is an obvious route from the flat 3 deck down the stairs to the driveway which supports that this is for entry to and exit from the flat.
- Prior to signing the current tenancy agreement, there was no impediment to flat 3 using the driveway for entry and exit. The landlord installed the gate and no entry signs only after the tenancy agreement was signed.
- Use of the driveway by flat 3 was well established prior to the signing of the current lease, with no conditions in writing.
- Use of the shared storage space by all three flats was also well established prior to signing the lease, with no conditions in writing. Landlord case
- The landlords have rented the top flat to the tenants which includes the outdoor deck and washing line only. A Trade Me advertisement for the premises also refers to “the top flat.” The landlord argues that it is implicit in that description that the flat 3 occupants are not entitled to access the ground level Majoribanks driveway entrance.
- The entrance to flat 3 is via Port St only. Flat 3 has no right to use the driveway entrance. The other entry door (which the landlord calls the back door) is only for access to the upper-level deck and washing line and is not to be used to access the stairs down to the courtyard and up to the driveway.
- When asked, the landlord confirmed that the tenancy agreement describes the premises as 3/87 Majoribanks St and does not otherwise describe or delineate the boundaries of the premises. There are no other terms in the agreement or any other rules in writing that describe the areas of the property that may or may not be used by flat 3.
- In relation to the shared storage space, the landlords confirmed that they have allowed all three flats to use it in the past but use is at their discretion for good tenants only. Use of the shed is not written into any of the leases. Discussion and findings—Driveway entrance
- The definitions in section 2 RTA provide: Premises includes....a) any part of any premises; and b) any land and appurtenances, other than facilities..... Facilities, in relation to a tenancy agreement (other than a boarding house tenancy agreement), includes all facilities provided by the landlord for the non-exclusive use and enjoyment of the tenant, otherwise than as part of the premises that are the subject of the agreement, such as the following: a) any land or buildings intended for use for storage space or for the parking of motor vehicles....
- The address for the premises is 3/87 Majoribanks St and the mailboxes for all three flats are located at the top of the driveway to 87 Majoribanks St.
- Nothing in the tenancy agreement prescribes the use of the exterior spaces. Given the layout of the property and obvious routes that are available to access flat 3, and the definition of premises and facilities in the RTA, I consider that the driveway and any exterior steps leading to flat 3 may be used by the flat 3 tenants unless specifically prohibited by the tenancy agreement. The driveway comes under the definition of facilities.
- The terms of the flat 2 tenancy agreement are unknown. The landlord could not advise at the hearing whether flat 2 has been granted exclusive use of particular areas. If flat 2 has been granted exclusive use of some of the external areas, the flat 3 contract should be consistent with that. However, the tenancy agreement for flat 3 does not contain any restrictions and does restrict or prohibit use of the driveway entrance by flat 3.
- The gate between the driveway and the courtyard was installed after the tenancy agreement was signed. Therefore, it cannot be treated as evidence of any established boundary at the date this tenancy agreement was signed.
- After carefully considering all the available evidence, I consider there is nothing in the tenancy agreement to prohibit the tenants from using obvious routes to flat 3 which includes the driveway entrance. The tenants’ evidence that they have been able to use both the driveway and Port Street entrances under a previous tenancy agreement and the current tenancy agreement supports that position. I have no difficulty finding that the tenancy agreement with the tenants implies the use of the driveway is a facility, as defined in section 2 RTA. The storage space
- The landlord allowed the tenants of all 3 flats to use the storage space. They have now locked the space because of the dispute that has arisen between flats 2 and 3. However, they argue that use of the space is entirely at their discretion because rights to the storage space are not recorded in the tenancy agreements.
- The conditions of use of the storage space are not specified in any written document. The only conditions of use appear to be those in the general notice posted inside the door requiring tenants’ to take their belongings and clean up when they leave.
- After carefully considering all the evidence, I find that the landlord gave permission to the tenants to use the storage space and the evidence is that they did indeed use the space. I find that the storage space is a facility as defined in s2 RTA. In that regard, I consider the landlord cannot simply remove the facility provided. Again, if the storage shed is not included with the tenancy, the landlord should specify this in the tenancy agreement.
- The findings that the driveway and the storage space are facilities as defined in s2 RTA also triggers other obligations in the act. The landlords must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant under section 38(2) and must also take all reasonable steps to ensure that none of the landlord’s other tenants do so either under section 45(1)(e). The definition of “premises” in those sections includes “facilities.” Similarly, there is an obligation on the tenants not to cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants under s40(2)(c) which includes facilities.
- Having regard to the above provisions, I have no difficulty finding that once a “facility” is provided by the landlord (such as a driveway or storage shed), the landlord cannot simply take it away at will and interfere with the tenants permitted use of it.
- It follows that I make declaratory orders confirming the rights of the tenants.
- I also comment that the use of a shared facility such as a driveway or storage shed requires clear understandings between the users as to their respective rights and obligations, and patience when difficulty arises. The landlord has a role to play in ensuring that any dispute between users is resolved, because of their obligation under s45(1)(e) to ensure that there is no interference tenants’ rights to use the facilities. The landlords could have facilitated a discussion and understanding between the tenants of both flats 2 and 3 as to their rights and obligations to avoid the conflict but they chose not to do so. Going forward, the landlords need to be mindful of their obligations in that regard. Work order regarding the gate
- The landlord has installed a gate at the foot of the steps to the courtyard in an attempt to prevent flat 3 from accessing this area. This is a breach of their rights under the tenancy agreement as declared above under s38(2) and 45(1)(e) RTA.
- Where the Tribunal finds the landlord has failed to comply with their obligations, it may make an order for the landlord to carry out any work to rectify the breach. See section 78(1)(e) RTA.
- 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. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) RTA.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work if the landlord should fail 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 set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) RTA.
- I make work orders for removal of the gate and the ‘No Entry” signs. Should the landlord fail to comply with the work order, they must pay compensation to the tenants as an alternative money order. If the landlord fails to comply with the work order and the alternative money order, the tenants will be entitled to do the work required to remove the gate and charge the landlord up to the sum of $300, which I consider is a reasonable estimate of the removal costs. Suppression and filing fee
- As the tenants have substantially succeeded with their claims, they are entitled to suppression of their names and identifying details, as requested.
- The tenants are also entitled to the reimbursement of the filing fee on this application. They also seek the filing fee on an earlier application that was withdrawn. However, there is no basis for doing so.