What was the outcome of Tenancy Tribunal case 5425977?

The tribunal order states: By way of declaration, the modified garage at the tenancy address is not part of

How much money was awarded in case 5425977?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5425977?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5425977?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13321541-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5425977?

The tribunal order states: By way of declaration, the modified garage at the tenancy address is not part of

How much money was awarded in case 5425977?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5425977?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5425977?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13321541-Tenancy_Tribunal_Order.pdf.

234 Shortland Street, Aranui, Christchurch 8061 Tenancy Tribunal Case 5425977 — Healthy homes

Order

By way of declaration, the modified garage at the tenancy address is not part of the residential premise and no part of the garage (including the modified space) is to be used for residential purposes. In particular, it is not to be used as a sleeping space.
All tenant claims are dismissed.

Reasons

Both parties attended the hearing. Ms Page attended on behalf of the landlord.
Ms Brown attended to support the tenant. Ms Brown asked for, and was given, permission to speak on the tenant’s behalf on occasion (with the landlord’s consent).
The landlord seeks an order that the modified garage at the premises must not be used as a sleeping space.
The tenant seeks that the Tribunal does not issue the order (above) as sought by the landlord. Additionally, the tenant seeks a declaration that the 14-day notice issued by the landlord in relation to the use of the “garage storage room” as a sleeping space be declared invalid. The tenant also seeks compensation for costs incurred in advancing her application (and defending the landlord’s application) and exemplary damages for an alleged breach in issuing the 14- day notice referred to above, loss of quite enjoyment and landlord’s failure to lodge bond. Background
The tenancy began in May 2011. The property owner then managed the property herself.
The property comprises a three-bedroom dwelling and a separate double garage.
The double garage has been modified in that approximately half of it has been walled off to create a separate space. This space has painted (possibly gib) walls, electricity and an extractor fan. It is currently set up as a living and sleeping space.
On one side of the garage exterior, the vehicle door has been rendered inoperable as a consequence of the interior modification and the modified space has a separate pedestrian door into it from the outside. The exterior of the garage seems to be constructed of aluminium.
The tenant gave evidence that she had been shown the property by the owner prior to taking the tenancy and the modified garage space had been described to her as a sleep out. She said she had been using it as a sleeping space for family members from the beginning of the tenancy and this had never been questioned by either the owner or the property manager who became involved prior to the Applicant.
The tenant gave further evidence that she had spoken to the previous owner who confirmed that he had consented to his (then) tenant completing the modification and that it had been sold to the current owner with an agreement to leave the modification in place.
The applicant provided written evidence from the owner disputing that the garage space had ever been intended to be part of the habitable space or that it was ever represented to the tenant as such. Evidence was also provided from the previous property manager confirming the same.
The reaction from the owner when she was told (by the Applicant) that the garage was being used as a sleeping space supports her contention that she was not aware it was being used for that purpose.
All inspection reports referred to the garage as a garage with no reference to any sleeping space contained therein.
When the applicant took over as manager the property was referred to in the hand over notes as a three-bedroom house. Under outstanding maintenance, it was noted that there was rusty guttering on the garage which need to be addressed (my emphasis).

Can the modified garage space be used as a bedroom?

I find both parties reliable but note that recollections about what was said may easily differ especially over such a long period. It may be that the matter was never directly addressed, and the tenant assumed the modified space could be used as a sleep out and the owner and property managers assumed it would not be used in that way.
Nevertheless, the owner and current manager are now aware that the modified garage is being used as a sleeping space and consider that this is a health and safety issue and that it puts them in breach of the Residential Tenancies Act 1986 (the Act) and the Healthy Homes requirements in particular.
As stated in the declaration above, the modified garage cannot be used as a sleeping or habitable space. It is not compliant and such use puts the landlord in breach of the Act if it continues to be used in that way.
On discovering that the space was not approved for sleeping, the applicant attempted to discuss the matter with the tenant but was unable to make progress. A 14-day notice to remedy was then issued (although it was later withdrawn).
The 14-day notice, although perhaps unnecessary in these circumstances (given the lengthy tenancy and the fact that the landlord was not seeking to terminate the tenancy) is not invalid. The space should not be used as a sleeping space and the tenant was unwilling to accept this (perhaps understandably in these unusual circumstances).
Both parties, then sensibly sought guidance from this Tribunal in relation to the matter. Tenant compensation and exemplary damages claims
The tenant seeks compensation for the costs she has incurred to attempt to show that the modified garage space is able to be used for sleeping.
The tenant obtained advice from a builder and made enquiries of the Council to support her defence. She also purchased stationary for which invoices were provided. No invoice was provided from the builder who provided the opinion as to the suitability of the space for sleeping.
No compensation can be paid in relation to the above as there is no identified breach on the part of the landlord.
The landlord gave evidence that the rent for the property was determined on the basis that it is a three-bedroom property. The tenant did not dispute this. The tenant has effectively received the benefit of a four-bedroom property for the price of a three-bedroom property over a number of years.
Although it is undoubtedly inconvenient and distressing for the tenant to have to cease using the garage as a sleeping space, no loss has been proven to be caused by any landlord breach and no exemplary damages can flow in relation to the modified garage space.
The tenant also claims the property owner did not lodge the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received under section 19(1) of the Act.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 under section 19(2) and Schedule 1A of the Act.
The applicant acknowledged that on taking over the management of this property (along with many other properties at the same time), they assumed that the record showing that the bond had been paid to the bond centre was accurate.
On discovering (through the tenant’s cross application) that it had been retained by the property owner at the beginning of the tenancy, the applicant arranged to have the owner pay the bond to the bond centre immediately.
I find that the landlord (as agent for the owner) has committed an unlawful act.
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 under section 109(3) of the Act.
There is no evidence in relation to the owner’s intentions when the bond was paid to her. The written evidence she provided did not address this issue. This applicant clearly had no intention to breach the Act given that they were unaware that the bond had not been lodged previously.
The applicant confirmed that the oversight had been addressed immediately it was brought to their attention.
There has been no loss to the tenant in relation to this breach and there is no public interest in awarding exemplary damages against the landlord here.
No such damages are ordered. Filing fees
In the circumstances, although the landlord has been successful, I am not ordering reimbursement of filing fees.
The tenant felt obliged to file her own application as a consequence of the landlord’s application and incurred costs in relation to an issue for which she was not to blame. The tenant has not intentionally breached the Act and it is not appropriate that she cover the landlord’s filing costs.

Order

By way of declaration, the modified garage at the tenancy address is not part of the residential premise and no part of the garage (including the modified space) is to be used for residential purposes. In particular, it is not to be used as a sleeping space.
All tenant claims are dismissed.

Reasons

Both parties attended the hearing. Ms Page attended on behalf of the landlord.
Ms Brown attended to support the tenant. Ms Brown asked for, and was given, permission to speak on the tenant’s behalf on occasion (with the landlord’s consent).
The landlord seeks an order that the modified garage at the premises must not be used as a sleeping space.
The tenant seeks that the Tribunal does not issue the order (above) as sought by the landlord. Additionally, the tenant seeks a declaration that the 14-day notice issued by the landlord in relation to the use of the “garage storage room” as a sleeping space be declared invalid. The tenant also seeks compensation for costs incurred in advancing her application (and defending the landlord’s application) and exemplary damages for an alleged breach in issuing the 14- day notice referred to above, loss of quite enjoyment and landlord’s failure to lodge bond. Background
The tenancy began in May 2011. The property owner then managed the property herself.
The property comprises a three-bedroom dwelling and a separate double garage.
The double garage has been modified in that approximately half of it has been walled off to create a separate space. This space has painted (possibly gib) walls, electricity and an extractor fan. It is currently set up as a living and sleeping space.
On one side of the garage exterior, the vehicle door has been rendered inoperable as a consequence of the interior modification and the modified space has a separate pedestrian door into it from the outside. The exterior of the garage seems to be constructed of aluminium.
The tenant gave evidence that she had been shown the property by the owner prior to taking the tenancy and the modified garage space had been described to her as a sleep out. She said she had been using it as a sleeping space for family members from the beginning of the tenancy and this had never been questioned by either the owner or the property manager who became involved prior to the Applicant.
The tenant gave further evidence that she had spoken to the previous owner who confirmed that he had consented to his (then) tenant completing the modification and that it had been sold to the current owner with an agreement to leave the modification in place.
The applicant provided written evidence from the owner disputing that the garage space had ever been intended to be part of the habitable space or that it was ever represented to the tenant as such. Evidence was also provided from the previous property manager confirming the same.
The reaction from the owner when she was told (by the Applicant) that the garage was being used as a sleeping space supports her contention that she was not aware it was being used for that purpose.
All inspection reports referred to the garage as a garage with no reference to any sleeping space contained therein.
When the applicant took over as manager the property was referred to in the hand over notes as a three-bedroom house. Under outstanding maintenance, it was noted that there was rusty guttering on the garage which need to be addressed (my emphasis).

Can the modified garage space be used as a bedroom?

I find both parties reliable but note that recollections about what was said may easily differ especially over such a long period. It may be that the matter was never directly addressed, and the tenant assumed the modified space could be used as a sleep out and the owner and property managers assumed it would not be used in that way.
Nevertheless, the owner and current manager are now aware that the modified garage is being used as a sleeping space and consider that this is a health and safety issue and that it puts them in breach of the Residential Tenancies Act 1986 (the Act) and the Healthy Homes requirements in particular.
As stated in the declaration above, the modified garage cannot be used as a sleeping or habitable space. It is not compliant and such use puts the landlord in breach of the Act if it continues to be used in that way.
On discovering that the space was not approved for sleeping, the applicant attempted to discuss the matter with the tenant but was unable to make progress. A 14-day notice to remedy was then issued (although it was later withdrawn).
The 14-day notice, although perhaps unnecessary in these circumstances (given the lengthy tenancy and the fact that the landlord was not seeking to terminate the tenancy) is not invalid. The space should not be used as a sleeping space and the tenant was unwilling to accept this (perhaps understandably in these unusual circumstances).
Both parties, then sensibly sought guidance from this Tribunal in relation to the matter. Tenant compensation and exemplary damages claims
The tenant seeks compensation for the costs she has incurred to attempt to show that the modified garage space is able to be used for sleeping.
The tenant obtained advice from a builder and made enquiries of the Council to support her defence. She also purchased stationary for which invoices were provided. No invoice was provided from the builder who provided the opinion as to the suitability of the space for sleeping.
No compensation can be paid in relation to the above as there is no identified breach on the part of the landlord.
The landlord gave evidence that the rent for the property was determined on the basis that it is a three-bedroom property. The tenant did not dispute this. The tenant has effectively received the benefit of a four-bedroom property for the price of a three-bedroom property over a number of years.
Although it is undoubtedly inconvenient and distressing for the tenant to have to cease using the garage as a sleeping space, no loss has been proven to be caused by any landlord breach and no exemplary damages can flow in relation to the modified garage space.
The tenant also claims the property owner did not lodge the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received under section 19(1) of the Act.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 under section 19(2) and Schedule 1A of the Act.
The applicant acknowledged that on taking over the management of this property (along with many other properties at the same time), they assumed that the record showing that the bond had been paid to the bond centre was accurate.
On discovering (through the tenant’s cross application) that it had been retained by the property owner at the beginning of the tenancy, the applicant arranged to have the owner pay the bond to the bond centre immediately.
I find that the landlord (as agent for the owner) has committed an unlawful act.
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 under section 109(3) of the Act.
There is no evidence in relation to the owner’s intentions when the bond was paid to her. The written evidence she provided did not address this issue. This applicant clearly had no intention to breach the Act given that they were unaware that the bond had not been lodged previously.
The applicant confirmed that the oversight had been addressed immediately it was brought to their attention.
There has been no loss to the tenant in relation to this breach and there is no public interest in awarding exemplary damages against the landlord here.
No such damages are ordered. Filing fees
In the circumstances, although the landlord has been successful, I am not ordering reimbursement of filing fees.
The tenant felt obliged to file her own application as a consequence of the landlord’s application and incurred costs in relation to an issue for which she was not to blame. The tenant has not intentionally breached the Act and it is not appropriate that she cover the landlord’s filing costs.

Tenancy Tribunal case 5425977 — Healthy homes at 234 Shortland Street, Aranui, Christchurch 8061

At a glance

Tenancy Tribunal case 5425977 — Healthy homes at 234 Shortland Street, Aranui, Christchurch 8061

At a glance

Claims & awards

Order

Reasons

Can the modified garage space be used as a bedroom?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Can the modified garage space be used as a bedroom?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions