What was Tenancy Tribunal case 5329437 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5329437?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5329437?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Healthy homes, Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 5329437?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12766492-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5329437 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5329437?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5329437?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Healthy homes, Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 5329437?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12766492-Tribunal_Order_Redacted.pdf.

157 McLachlan Road, Kaukapakapa, Kaukapakapa 0984 Tenancy Tribunal Case 5329437 — Mould & damp

Order

AS TO JURISDICTION AND DIRECTIONS SETTING DOWN THE

TENANT’S SUBSTANIVE CLAIMS FOR HEARING

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details. The tenant has asked that the address be published to warn other potential tenants about the alleged issues she has experienced during her tenancy with both the landlord and the premise.
The hearing is adjourned.
A further 300 minutes (5 hours) should be allowed for the next hearing of this matter, scheduled before me at this court on the next available date.
This hearing was to decide whether the Tenancy Tribunal has jurisdiction to hear the tenant’s substantive claim, to clarify the tenant’s substantive claims and to provide the parties directions for the hearing of the tenant’s substantive claims. Jurisdiction
The Tenancy Tribunal has jurisdiction to hear the tenant’s substantive claims for the

Reasons

set out below. Directions

If either party intends to produce any videos, photographs and/or other documents/evidence that they are going to rely on to support their claims or in defence to the other party’s claims at the next hearing, they must file and serve copies of those videos, photographs or documents no later than 4 working days before the next scheduled hearing , by: a. Emailing links to file sharing applications with large videos, short videos, photographs, documents and/or other evidence to remote.tenancy@justice.govt.nz with application 5329437 in the subject line of the email(s); and b. Serving them on each other by the tenant emailing the landlord at thestoneylee@gmail.com and helee1213@gmail.com, and the landlord emailing the tenant at [email addressed suppressed] and the tenant’s legal representative at susan.martell@adl.org.nz.
Photographs should be numbered and captioned for ease of reference during the hearing.
Any witnesses called must attend the hearing to be cross examined or may provide witness statements and make themselves available to the Tribunal by phone or video for cross examination. Contact details for these remote witnesses will need to be provided to the Tribunal no later than five working days before the next scheduled hearing.
The tenant must be able to clearly identify the date and how her issues/claims were raised with the landlord, what the landlord did in response to her raising the issues/claims (if anything) and the date the issues/claims were remedied (if they have been remedied) or that they have not been remedied.
The burden of proof is on the party making a claim(s). Once the party has proved its claim(s) on the balance of probability, it is then for the other party to disprove that claim. Reasons:
The tenant attended the hearing. The landlord did not.
I am satisfied that the landlord had received proper notice of the hearing time, date and place and chose not to attend.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). Evidential burden
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed.
The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. General legal principles in relation to the award of compensation or exemplary damages
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. Awards of compensation in the Tribunal are generally modest. When awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach. Factors such as the loss of amenity, stress and inconvenience suffered by the party that has proven the breach are considered when deciding the quantum of any compensation awarded.
Exemplary damages can also be awarded for breaches listed in Schedule 1A of the RTA, provided the Tribunal is satisfied that the breach was intentional. Exemplary damages are a penalty designed to deter parties from intentionally engaging in the kind of behavioural conduct provided for in Schedule 1A of the RTA.

JURISDICTION

Background

The premise was advertised by a letting agent as a house that had been divided into two separate self-contained dwellings. The tenant answered this advertisement and took the tenancy based on the landlord’s assurance that the tenant had full and exclusive use of her side of the house, and of the double garage, and that the house had been legally subdivided with sound proofing between the households and the requisite fire walls etc. the tenant and landlord never shared any facilities nor had any meals together. There was a door that connected the two halves of the house. This door was permanently closed and locked at all times during the tenancy.
The tenant shared a recycle bin and mailbox with the landlord as the premise she rented did not have its own bin or mailbox.
The tenant signed a fixed tenancy agreement that confirmed the tenancy commenced on 3 May 2024 and was due to terminate on 15 May 2025 and that the landlord and not the letting agent would be managing the tenancy.
The tenant confirmed the premise she rented is a fully self-contained flat, with a separate water tank, an office, two bedrooms, kitchen/cooking facilities and a sink, bathroom and laundry facilities and exclusive use of a double garage. The tenancy agreement requires the tenant to pay all charges for electricity, gas, telephone, metered water and wastewater. The rent included “free broadband VDSL fibre internet unless there is a problem paying the bills on time”. Power was not included in the weekly rental of $560.00 per week. A tenancy agreement was signed only by the tenant on 6 May 2024. The tenancy commenced on 3 May 2025.
The landlord/owner of the property lived in the other side of the house. For the first three months of the tenancy and for periods of time during the tenancy the landlord was overseas in Australia. Relevant law
The Tribunal has jurisdiction to hear disputes between landlords and tenants provided the dispute relates to a tenancy to which the Residential Tenancies Act 1986 applies.
The onus of proving that the Tribunal does not have jurisdiction falls on the party asserting that the Tribunal does not have Jurisdiction (see section10 RTA). In this case, that onus falls on Ms Baker.
Section 77 and 82(1) RTA, gives the Tenancy Tribunal sole originating jurisdiction to determine in accordance with the RTA all disputes arising between landlords and tenants in relation to any tenancy to which the RTA applies.
Section 2 of the RTA sets out the following material definitions: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement 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 created by any enactment; and, where appropriate, also includes a former tenancy 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 Premises is defined as including: a. Any part of any premises; and b. Any land and appurtenances, other than facilities; and c. Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land. 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;
Section 4 of the RTA provides that the RTA applies to every tenancy for residential purposes except as specifically provided.
The exceptions to the RTA are contained in section 5. Section 5(n) specifically excludes arrangements where the premises are being used for residence by the landlord or family. This section envisages owners of a home renting out their spare rooms in a flatmate or boarding type situation.
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the RTA’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally. Separate household units
As the dwelling is a building, the requirements of the Building Act 2004 (“the Building Act”) apply to it.
One of the types of buildings categorised in the Building Act is called a “household unit”. A household unit is defined in section of 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”.
The Tenancy Tribunal deals predominantly with household units (with the exception of boarding houses).
The question of whether a premises is a separate household unit arose in the recent High Court decision Harding v Schellevis, Tan and Caroto [2021] NZHC 1265.
In that case, the landlord entered into a “flatmate/house-sharing agreement” with the tenants, which expressly recorded an acknowledgement that the premises were the primary residence of the landlord’s family and that therefore the Act did not apply (see section 5(n) exclusion).
However, the Auckland Council previously confirmed to the landlord that the premises could not be tenanted as a separate household unit (e.g., no fire rated walls etc).
Analysing the actual situation, the Tribunal determined that the RTA did apply and that the building consisted of two separate and distinct household units.
The landlord appealed that finding to the District Court, which confirmed the Tribunal’s finding, and dismissed the landlord’s appeal.
The landlord then appealed to the High Court and the High Court confirmed both the District Court and Tribunal’s decision. Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions; d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”
The self-contained nature of the granny flat was decisive in Harding v Shellevis. However, 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. A couple of older Tribunal authorities illustrate this principle.
In Whitelock v McConway (Tenancy Tribunal Blenheim, 13 July 1995) the tenant occupied a sleepout a couple of meters from the main home occupied by the landlord. This comprised a bedroom, shower, toilet, and wash house attached to the garage. The tenant used a shared kitchen to prepare his breakfast and lunch.
Evening meals were mainly provided by the landlord. The landlord regarded the tenant as a boarder with free access to the facilities in the home.
The tenant was sharing kitchen, bathroom and laundry facilities with the landlord.
The Tribunal held that the area occupied by the tenant was part of the family home, because it did not have separate cooking facilities and contained the only shower and laundry. The tenant’s room was part of the landlord’s home and was excluded from jurisdiction pursuant to section 5(1)(n) RTA.
In Barnett v Dempsey (Tenancy Tribunal Auckland, 13 June 2003, TT 790/03) the tenant lived in a room in a converted garage a few meters from house occupied by the landlord and her daughter. The tenant had a fridge and a cooktop. The tenant had to wash his dishes in the kitchen of the house. He had a key to gain access to the house to use the shower and toilet. The tenant only used the lounge in the house when invited to do so by the landlord.
The Tribunal held that, despite the sharing of facilities, the RTA was not excluded.
The tenant’s room comprised “premises” for the purpose of the RTA: “That the premises did not have their own toilet and washing facilities is not...fatal to their [sic] being “premises” because the definition of “facilities” in the Act appears to envisage a situation where other facilities are to be provided to the tenant by the landlord “for the use and enjoyment of the tenant, otherwise than as a part of the premises that are the subject of the agreement”, such as toilet and washing facilities...”.
These decisions were decided on their own facts. But they show that the Tribunal is sometimes required to assess whether the extent of shared facilities or spaces means the living arrangements are to be properly characterised as a tenancy, or as a flat share (or boarding) arrangement. Analysis
In the circumstances of this case and the living arrangements as outlined by the tenant at the hearing today, I find that Ms Heron Lee meets the definition of a landlord, in that she leased the residential premises to [the tenant] in consideration of rent.
[The tenant] falls within the definition of being a tenant, given that she is the grantee of residential premises. [The tenant] had the exclusive right to occupy the self-contained flat/half a house, on the basis of the payment of rent. No other person occupied the self-contained flat or was entitled to occupy those areas from the time the tenant commenced paying rent to exclusively occupy and use those areas of the premise.
There was a formal written tenancy agreement signed by the tenant in relation to the flat/half a house. Although the parties intent and the type of agreement signed by them is not determinative of the nature of the relationship, it is one of the factors I can take into account when determining the true nature of the relationship. It makes it clear that the intention of the parties was that this was a residential tenancy and not a flat sharing arrangement.
The difference between a flatmate and a tenant is that a tenant obtains a right to occupy the premises (in this case, the flat) rented from the landlord. A flatmate resides in the premises by way of a licence from either the owner, or a tenant who would have a contractual relationship with the landlord. This is not a case where [the tenant] was only residing in the flat by way of licence. She had exclusive rights to occupy the flat. There is no compelling evidence establishing that this is a flatmate arrangement.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006, Judge Broadmore considered the definition of a flatmate. The court held that: “...the use of the word “flatmate” does not in itself define the legal relationship between flatmate and landlord. “By ‘flatmate’ I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”
There was no evidence [the tenant] had access to shared or common areas (including cooking) in Ms Lee’s house or workshop or that [the tenant] had a right to occupy areas used by Ms Lee. There was no evidence of a co-operative arrangement between the parties’ sharing facilities in this case, such that a flatting arrangement might exist. The evidence is clear that the two separate households lived independently.
As noted above, 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 nonexclusive use of the tenant.
In Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the RTA is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.
The next matter to consider is whether or not section 5(1)(n) RTA operates to exclude the agreement from the operation of the RTA.
The District Court in Musson v Dobrisek DC Lower Hutt, CIV- 2006-032-36, 5 May 2006, held that the correct question for the Tribunal to answer when considering section 5(1)(n) RTA is: “Is the principal use of these premises as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owners’ family.”
If the house as a whole was the relevant “premises” then I would easily conclude that section 5(1)(n) applied in this case. However, I find that is not the case, rather I consider that the self-contained flat, is a separate premise to the rest of the house.
The Court has previously determined in Kahi v Lucus HC Auckland, 81/96, 23 September 1996 and Harding v Schellevis & Ors that there can be a separate premises within a larger premises. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”
While this was physically one building, there were two separate and distinct household units within that building. [The tenant] had her own separate premises (with its own separate entrance and exit) that was not shared with the landlord. She did not utilise the main areas where Ms Lee was living when she was in New Zealand. The house as a whole was not shared, and there was a clear separation of households. [The tenant] had her own separate living space that Ms Lee understood she could not enter without consent. [The tenant] treated Ms Lee as privately occupying the other half of the house and did not enter this area without consent or invitation. There were 2 separate premises, each with exclusive possession, rather than a sharing of the house and its facilities.
Accordingly, the relevant “premises” for the purposes of section 5(1)(n) is the self- contained only. The question, then, is whether the self-contained flat was 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.
It is clear that the self-contained flat was not used principally as a place of residence for Ms Lee as the landlord or a member of her family.
Bearing in mind the above, my finding in this proceeding is that [the tenant] and occupied the self-contained flat as a separate household.
I find that there was a residential tenancy of the self-contained flat to which the RTA applies. This was not a flatmate sharing arrangement. The jurisdiction of the Tribunal is not excluded by section 5(1)(n) RTA.
That said, I am mindful that this arrangement may not be what Ms Lee anticipated at the time of agreeing to let the premise to [the tenant], despite what was advertised, and what is contained in the tenancy agreement, and the finding that this is a residential tenancy may have significant flow on effects for both parties. The Tenant’s Substantive Claims
The tenant seeks orders for compensation, general damages and exemplary damages for: a. Failure to provide and maintain the premises in a reasonable state of repair, specifically (Refer to s45(1)(b) of the RTA): i. Tap; ii. Heater in bathroom; iii. Ventilation- cooking smells; and iv. Water pump- went off and was located in the landlord’s workshop that the tenant had no access to so could not get in and could not contact the landlord. Contacted letting agent but key provided for us in the outside workshop entrance did not work as it was barricaded from the inside; b. Failure to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises (Refer to s45(1)(c) of the RTA); c. Breach of healthy homes standards, specifically (Refer to s45(1)(bb) of the RTA: i. Moisture ingress and drainage; ii. Ventilation; and iii. Draught stopping. d. Failure to comply with requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises (Refer s45(1)(c) of the RTA) this includes the Housing Improvement Regulations 1947, s15 requiring a house to be free from dampness, (mould, asbestos); e. Unlawful entry (refer s48(4) of the RTA); f. Breach of the tenant’s quiet enjoyment and privacy (Refer s38 of the RTA); g. Landlord failure to appoint a New Zealand based agent when overseas for more than 21 consecutive days (Refer to s16A of the RTA) h. Retaliatory notice (Refer to s54 of the RTA); i. Attempt to terminate without grounds- (Refer to s60AA of the RTA); j. Interference with the supply of gas, electricity, water, telephone services, or other services to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out (Refer s45(2) of the RTA)- this relates to cutting of the internet in retaliation for the tenant withholding payment for electricity until the landlord could prove the tenant was only being billed for her consumption; k. Charging the tenant for outgoings that could not be attributed solely to the tenant’s consumption- internet and electricity (Refer to s39 f the RTA); l. Was the premise an unlawful residential premise and should the tenant’s rent be reimbursed (Refer to s78A of the RTA); m. Tenancy agreement content breaches (Refer to s13A(1) and (1AAA) of the RTA); n. Tenancy agreement content related breaches (Refer to s13A (1A), (1CA), (1D) and (1F) of the RTA); i. No signed healthy homes compliance standard; ii. No smoke alarm information (how many alarms, where they are located, when they were last tested and when they expire); iii. No healthy homes detailed information for all the five healthy homes standards; o. Failure to provide a signed copy of the tenancy agreement to the tenant before the tenancy commenced (Refer to s13(2) of the RTA); p. Application fee to be refunded if tenant’s claims are wholly or substantially successful.
The landlord has not clarified whether she accepts the tenant’s substantive claims or if she opposes any of all the tenant’s claims.
The parties will be notified in writing by Tenancy Services of the date and time of the next hearing, which is to be scheduled for the 9 th and 11 th December 2025 from 2pm to 4:30pm via video hearing on MS Teams.

Tenancy Tribunal case 5329437 — Mould & damp at 157 McLachlan Road, Kaukapakapa, Kaukapakapa 0984

At a glance

Tenancy Tribunal case 5329437 — Mould & damp at 157 McLachlan Road, Kaukapakapa, Kaukapakapa 0984

At a glance

Claims & awards

Order

AS TO JURISDICTION AND DIRECTIONS SETTING DOWN THE

Reasons

RELEVANT LEGAL CONSIDERATIONS

JURISDICTION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

AS TO JURISDICTION AND DIRECTIONS SETTING DOWN THE

Reasons

RELEVANT LEGAL CONSIDERATIONS

JURISDICTION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions