What was Tenancy Tribunal case 5428868 about?

The tribunal order states: The tenant’s name and identifying details must not be published.

How much money was awarded in case 5428868?

Filing Fee: $28.00 awarded to tenant; Rent Reduction: $1,000.00 awarded to tenant

What type of tenancy dispute was case 5428868?

The primary dispute was Rent arrears. Related themes: Healthy homes, Leaks.

Where can I read the official tribunal order for case 5428868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13772793-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5428868 about?

The tribunal order states: The tenant’s name and identifying details must not be published.

How much money was awarded in case 5428868?

Filing Fee: $28.00 awarded to tenant; Rent Reduction: $1,000.00 awarded to tenant

What type of tenancy dispute was case 5428868?

The primary dispute was Rent arrears. Related themes: Healthy homes, Leaks.

Where can I read the official tribunal order for case 5428868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13772793-Tribunal_Order_Redacted.pdf.

Converted garage, 26 Aronui Road, Bridge Hill, Alexandra 9320 Tenancy Tribunal Case 5428868 — Rent arrears

Claims and awards in Tenancy Tribunal application 5428868. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent reduction		$1,000.00	Rent reduction
Filing fee reimbursement		$28.00	Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 5428868. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent reduction		$1,000.00	Rent reduction
Filing fee reimbursement		$28.00	Filing fee reimbursement

Order

The tenant’s name and identifying details must not be published.
PGG Wrightson Real Estate Limited as agent for Robert Shane Tinker must pay [the tenant] $1,028.00 immediately, calculated as shown in the table below.
The landlord must remove any impediments to lawful occupation and comply with any building, health or safety requirements, including the Residential Tenancies Act 1986, before renting out this premises again. DescriptionTenant Rent reduction $1,000.00 Filing fee reimbursement$28.00 Total award$1,028.00 _____54288682

Reasons

The hearing was conducted remotely on Microsoft Teams by video.
The tenant appeared for himself.
The landlord and the property manager appeared for the landlord.
The tenant claims that the premises was an unlawful premises and seeks a rent reduction. Background
The tenancy began on 18 July 2025 and ended on 21 October 2025.
The premises is a converted garage on two levels. It is separate from the main house.
When Mr Tinker purchased the property in about 2019, it was advertised as being a “home and income” property because the converted garage was rented out. LJ Hooker’s online blurb states: The loft above the garage provides studio style living with kitchen and bathroom facilities which makes it beneficial for additional income or the like.
A former owner or owners converted the original garage for residential use. The conversion work prior to Mr Tinker’s purchase of the property included adding an additional level, installing a toilet, and putting up a dividing wall downstairs. The new wall preserved one internal garage park on one side and created a habitable space on the other side, which now contains a laundry and a bathroom.
After Mr Tinker purchased the property, he has a qualified builder to carry out significant improvements to the converted garage. The improvements included installing and/or replacing insulation, lining the downstairs bathroom walls, resituating the downstairs dividing wall, installing glass ranch sliders, replacing kitchen appliances, and upgrading sanitary fixtures. Mr Tinker did not obtain a building consent for this upgrading work. He described the work as being like-for- like.
Mr Tinker submitted a Healthy Homes Assessment report dated 5 May 2023 confirmed the premises complied with healthy homes standards.
The tenant, who is a qualified engineer, is concerned that the premises has several defects and considers that the overall construction is poor. In that regard _____54288683 he identifies that the premises has no oven, and no stair handrail as required by the Housing Improving Regulations 1947, the block walls and the concrete pad may not have been properly sealed against water ingress, the wall insulation work may not meet code, and the kitchen may not meet fire safety standards. The tenant commented in his application: I realised after starting the tenancy that the dwelling was almost certainly not legal. It did not have an oven, and felt particularly poorly built. I am disappointed that the agent did not do simple diligence around this property... ... They rented out a building that was never consented for residential use. It also lacked a handrail in the stairwell, adequate cooking facilities, and the power bills provided to me did not reflect the period in which the power was used. The saga caused me significant distress while trying to find a way to move out as soon as possible.
Mr Tinker relied on LJ Hooker’s representations and his property manager PGG Wrightson did not advise him that the premises could not be lawfully rented. However, he has applied for a certificate of compliance presumably because the property file does not contain evidence that the building work converting the premises to a separate household unit was properly consented.

Was the premises an unlawful premises?

Legal principles - general

The Tribunal may declare premises to be unlawful residential premises. 1 Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with either: o s 36 of the Residential Tenancies Act 1986 (RTA) which requires the landlord to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes); or o s 45(1)(c) of the RTA which requires the landlord to comply with enactments in respect of buildings. 1 Under s 77(2)(ac) of the Residential Tenancies Act 1986 (RTA). _____54288684
Where the Tribunal declares the residential premises to be unlawful, it may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. 2
The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health, or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. 3
Relevantly for this case, household units may not be divided into smaller household units without fulfilling change of use rules which involve Council issuing a Certificate of Code Compliance. Section 115(1) of the Building Act 2004, provides: 115 Code compliance requirements: change of use An owner of a building must not change the use of the building,— (a) in a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use, will comply, as nearly as is reasonably practicable, with the building code in all respects...
The Building Act defines “household unit” as follows: household unit— (b) means a building or group of buildings, or part of a building or group of buildings, that is— (i) used, or intended to be used, only or mainly for residential purposes; and (ii) occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household... Discussion
I am satisfied on the balance of probabilities that the converted garage was never consented for its current changed use. It follows, the premises in an unlawful premises. 2 RTA s 78A(4)(a). 3 RTA s 78A(3)(a), (4), and (5). _____54288685
Homeowners and property managers would naturally have their antennae out whenever they consider renting out an ancillary dwelling such as converted garages. That an earlier owner rented such a premises out is not a get out of jail card because historically there is a high incidence of renting out unconsented premises. Cases involving unlawful premises have been reported in the media and professional landlords must surely be aware of the risks.
I am satisfied that landlord has caused or contributed to the unlawful occupation by failing to comply with s 45(1)(c) of the RTA which requires the landlord to comply with enactments in respect of buildings. Legal principles - rent reduction
Where the Tribunal finds premises are unlawful residential premises, it may order the landlord to (i) repay the tenant all the rent they paid; or (ii) a lesser amount of rent repayment that it finds fair having regard to the special circumstances of the case, including the nature of the premises.
The Court of Appeal in Parbhu 4 disparaged a sledgehammer response of a full rent reduction in response to “relatively footling” breaches: The effect of relying on that provision is that any relatively footling breach by a landlord (for instance, the incomplete planning or building consenting of an otherwise eminently safe and sound accessory unit)...would compel total restitution of rent paid regardless of the degree of benefit.
Consistently with these comments in Parbhu, any rent repayment the Tribunal orders should be proportionate to the seriousness of the breach. At the more serious end of the scale are premises that are virtual hovels, such as an unconsented converted garage that leaks and is infested by vermin. At the other end of the scale where there is a minor building consent irregularity, but the premises are “eminently safe and sound” a full rent reduction is not called for.
The District Court recently summarised the situation in the following terms: 5 [T]he purpose of s 78A is to prevent landlords from offering premises which fail to meet the statutory and regulatory thresholds of safe and sanitary housing. However, a balance needs to be applied between premises which are generally safe and sanitary but are nonetheless unlawful because of a technical or relatively minor breach, and the tenant receiving the benefit and utility of those premises. 4 Want v Parbhu & Patel as Trustees of the Impala Trust [2019] NZCA 674 at [31]. 5 Fei Tang v Vahid Unesi [2026] NZDC 6212 [8 April 2026] at [53]. _____54288686 Each case will need to be determined on its own merits because clearly there will be many instances where premises will be unlawful because they are not safe and sanitary and not habitable.
Recent District Court illustrate how the Tribunal should assess possible rent reduction. In Chen v Kumar, 6 the premises had been consented for use as a rest home (upstairs) and a residence for the past owner and family (downstairs). Originally, the rest home and residency were not physically divided, but before the tenancy began someone blocked access between the upstairs and downstairs to create two separate residential units. The landlord, Mr Chen, was convinced that he could lawfully rent the downstairs premises out. The Tribunal found however, the premises were unlawful and ordered about 30 per cent of the rent be returned to the tenant, which amounted to $45,000.00.
In the District Court, Judge DJ Clark agreed with the Tribunal that the premises were unlawful. However, he considered that on the facts as he found them, the rent reduction must be drastically reduced. Importantly, Mr Kumar very much wanted to stay in the premises and the premises were not “unsafe”: [95] Furthermore, Mr Kumar and his family enjoyed the occupancy of a premises and received the full benefit of those premises throughout the course of the tenancy. He wanted the tenancy to continue. I do not accept then the unit is necessarily “unsafe” given Mr Kumar’s enjoyment of the same. Arguably it falls into the category contemplated by the Court of Appeal as being technically in breach of planning or consenting obligations but otherwise could be safe. Certainly, until February 2021 Mr Kumar thought so as he wanted to remain there. [96] The Tribunal ordered Anemax (and now the landlord through my order) to pay Mr Kumar the sum of $45,000 (being a 30% reduction on the total rent paid). For the reasons set out I quash that order given that I find Mr Kumar had the full benefit of the premises during the tenancy, which including a discount during the period of construction.
His Honour reduced the rent to be refunded to $2,000.00. That amount also took account of rent arrears of $3,165.71 (which the Tribunal had also declined to order). The District Court rent reduction of $2,000.00 amounts to about 3 per cent of the total rent paid. 7 If the $3,165.71 arrears are factored in the reduction is about 7.5 percent. 8 6 Chen v Kumar [2022] NZDC 7783. 7 The rent due to 9 March was $66,874.29. 8 The rent due to the end of the tenancy was $68,445.71. _____54288687
In Kemp v Elliot, 9 the premises’ passed its final inspection which found the build to have been completed fully with the building consent. The final inspection report recorded that Council should issue the CCC upon the landlord paying the appropriate application fee. Kemp is an exemplar of “the incomplete planning or building consenting of an otherwise eminently safe and sound accessory unit”.
The Tribunal had ordered 30 per cent rent reduction (based on findings of fact that the District Court did not adopt), which resulted in a refund rounded up to $20,000.00. 10 However, Judge D J Clark quashed the Tribunal’s order and substituted an order for a rent reduction of $2,000.00. That figure amounts to a rent refund of about 3 per cent.
In Johnson v Clement 11 Judge D J Clark heard an appeal involving a granny flat. The Tribunal found the premises became unlawful premises only after the landlord moved away from the main house so that the RTA s 5(1)(n) exclusion ceased to apply. The Tribunal ordered a rent reduction at the rate of $25.00 per week. The weekly rate was modest, but the total amount ordered for rent reduction was $10,500.00 because the tenancy had lasted 12 years.
His Honour found that the breach leading to the unlawfulness was technical. He relevantly for this decision, observed at [38] and [48] of his decision: [38] I agreed with the Tribunal the premises were unlawful premises, 15 however I held the Kumar’s were provided with premises which were otherwise safe and sanitary, and compliant in terms of healthy homes standards. On that basis, I found “special circumstances” existed justifying a reduction in the refund of rental which was ordered to be paid by the Tribunal. I reduced the refund of rent from an award of$45,000 down to an award of $2,000, the $2,000 reflecting the breach of s 78A of the RTA in the circumstances of that case. ... [42] The reason why these premises were “unlawful” was because Mr Johnson was no longer entitled to claim the premises were exempt under s 5(1)(n). That is a breach of the Act but is technical. The purpose of s 78A is to prevent landlords from offering premises which fail to meet the statutory and regulatory thresholds of safe and sanitary housing. However, a balance needs to be applied between premises which are safe and sanitary but are unlawful because of a technical 9 [2022] NZDC 17792. His Honour’s approach in Kemp was recently endorsed by the High Court in While v Morritt [2026] NZHC 490 [6 March 2026] at [69]. 10 The total rent due to the end of the tenancy was $63,607.14. 11 [2022] NZDC 2085. _____54288688 breach. Each case will need to be determined on its own merits because clearly there will be many instances where premises will be unlawful because they are not safe and sanitary.
His Honour found that the breach was similar to Kemp and that the Tribunal’s rent refund should be reduced to the sum of $2,000. 12 Analysis
I must carefully weigh what amount of rent it is fair to deduct. The RTA does not specify the “special circumstances of the case” I must have regard to except for “the nature of the premises”. Other special circumstances I find relevant are: 13 a. The landlord’s knowledge of the breach and reasons for entering the tenancy. b. The tenant’s reasons for bringing the claim. c.The benefits the parties received and the detriment they suffered. d. The seriousness of the regulatory breaches making the premises unlawful. e. The purposes of discouraging tenancies of unlawful premises and ensuring landlords do not unfairly profit from unlawful premises.
The premises in this case is probably reasonably safe and habitable overall. However, the stairs lack a handrail. It probably should have one. This presents an element of low-level risk that ought not to exist in a premises built at about the time it was. The premises does not have an oven. That lack of compliance did not affect the tenant, but it is nonetheless below the standard set in 1947.
The tenant brought the claim to protect other potential tenants from doing as he did: unknowingly renting an unlawful premises with an uncertain level of compliance and unknown potential health and safety defects.
The tenant had the benefit of a probably generally habitable and safe premises, albeit there may be defects in addition to those already identified because the construction work was not vetted by Council against the Building Code. The tenant was distressed by the lack of certification and disappointed in the landlord’s level of professionalism. 12 At [44]. 13 See Janet Robertshawe’s 2019 conference paper, The Legacy of Anderson v FM Custodians: Section 78A Tenancies. _____54288689
The landlord benefitted from the rental income for the tenancy.
It is apposite to deny the landlord some of the profit of the unlawful tenancy to discourage this landlord and others from not taking due diligence to avoid renting out unlawful premises.
The tenancy was a short-term one of about 14 weeks duration. The weekly rent was $430.00. The tenant would therefore have paid rent of about $5,897.14 in total.
Having regard to the circumstances and the District Court cases I have discussed, a rent reduction of $1,000.00 is apposite. That equates to an approximately 17.5 per cent rent reduction, which is within the appropriate range in the circumstances.
The Tribunal orders accordingly. Filing fee
The landlord must reimburse the tenant for the filing fee. 14 Non-publication
The tenant seeks an order for non-publication.
The tenant has substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case. 15
The Tribunal orders that the tenant’s name and any identifying details must not be published. R Kee 14 RTA s 102(4)(a). 15 RTA s 95A(1). _____542886810 17 June 2026 _____542886811

Tenancy Tribunal case 5428868 — Rent arrears at Converted garage, 26 Aronui Road, Bridge Hill, Alexandra 9320

At a glance

Tenancy Tribunal case 5428868 — Rent arrears at Converted garage, 26 Aronui Road, Bridge Hill, Alexandra 9320

At a glance

Claims & awards

Order

Reasons

Was the premises an unlawful premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was the premises an unlawful premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions