What was the outcome of Tenancy Tribunal case 4472482?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4472482?

Compensation: Lack Of Amenity: $500.00 awarded to tenant; Compensation: unlawful residential p…: $2,500.00 awarded to tenant; Compensation: Utilities: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4472482?

The dispute type was not classified.

Where can I read the official tribunal order for case 4472482?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9520674-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4472482?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4472482?

Compensation: Lack Of Amenity: $500.00 awarded to tenant; Compensation: unlawful residential p…: $2,500.00 awarded to tenant; Compensation: Utilities: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4472482?

The dispute type was not classified.

Where can I read the official tribunal order for case 4472482?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9520674-Tribunal_Order.pdf.

1 Betsy Lane, Wainui, Wainui 0932 Tenancy Tribunal Case 4472482 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4472482 — net $4,670.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: unlawful residential premises	$2,500.00	unlawful residential premises
Compensation: lack of amenity	$500.00	lack of amenity
Compensation: Utilities	$750.00	Utilities
Bond refund	$900.00	Bond refund
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,670.44
Total payable by Landlord to Tenant	$4,670.44

Claims and awards in Tenancy Tribunal application 4472482 — net $4,670.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: unlawful residential premises	$2,500.00	unlawful residential premises
Compensation: lack of amenity	$500.00	lack of amenity
Compensation: Utilities	$750.00	Utilities
Bond refund	$900.00	Bond refund
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,670.44
Total payable by Landlord to Tenant	$4,670.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The tenancy is a residential tenancy. The Tribunal has jurisdiction to determine the substantive applications.
The premises is an unlawful residential premises when tenanted as two separate household units.
Helen Wang must pay Jared Keys and Natasha Keys $4,670.44 immediately, calculated as shown in table below: DescriptionTenant Compensation: unlawful residential premises$2,500.00 Compensation: lack of amenity$500.00 Compensation: Utilities$750.00 Bond refund$900.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$4,670.44
The tenant’s remaining applications are dismissed.

Reasons

Both parties attended the hearing. The landlord was assisted by an interpreter.
The tenant seeks a declaration that the premise was an unlawful residential premises, and reimbursement of the rent paid. The tenant also seeks reimbursement of outgoings paid, compensation for the landlord’s failure to maintain the premises, and breach of quiet enjoyment.
The landlord has retained the bond in lieu of two weeks rent which was not paid at the end of the tenancy. While there is no specific application for rent arrears, she signalled this application at the case conference, and I have considered it.
Further, the landlord’s position is that this is not residential tenancy, rather it is flatmate arrangement to which section s(1)(n) of the Act applies. Background
The tenancy commenced on 31 August 2020 and ended on 2 January 2022.
The premises is a 4-bedroom home, newly constructed. The landlord has divided it into two areas. One with the main entrance, kitchen, bathroom, living area and two bedrooms. The other with two bedrooms, an ensuite bathroom and luadnry area. This second area was occupied by the tenant.
The landlord occupied part of the house until 15 May 2021, when she returned to China. During that time, her portion of the house was tenanted to another family.
The tenant had no access to the main entrance of the house, and the sliding door was locked in the evenings, so the tenant had no access to that part of the house.
The tenant accessed his part of the premises via the laundry door.
The tenant’s position was that he had no access to the kitchen. The landlord says that he was able to use the kitchen, but that he never did.
There was shared access to the patio and garden.
Both parties agree there was very limited contact between them.
Power, water and internet were shared on a per head basis.

Were the premises occupied as a separate household unit?

The tenant had very little interaction with the landlord. As stated, there were no minimal facilities and they lived independently.
“Residential premises” is defined in section 2(1) of the Act as 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 in section 2 of that Act 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.
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 & Ors [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 Act 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.”
Bearing in mind the above, my finding in this proceeding is that the tenants occupied their unit as “a self-contained separate household unit”.

Is the premises an unlawful residential premises?

Section 78A(2) of the Act states: For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), ..., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
“Residential premises” is defined in section 2(1) of the Act as 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 in section 2 of that Act 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.
Section 36 of the Act states that: The landlord shall 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.
Section 45(1)(c) states that: (1)The landlord shall – ..... (c) Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;
The unit occupied by the tenant is clearly a residential premises, in that it is a part of the premises, used for occupation as a place of residence. Put simply, it was intended that the tenant live in the premises, and the tenant did, in fact, live there.
The question is whether the premises can be lawfully occupied as residential premises, either generally or for the particular residential purposes for which the tenant occupied it, and whether the landlord’s failure to comply with either section 36 or section 45(1)(c) caused or contributed to the unlawfulness of the occupation.
In the present case, the particular residential purposes concerned is the occupation of the is the occupation of the unit as a second household unit, separate to the rest of the premises.
The tenant argued the Council had confirmed that the landlord was not permitted to be rent the unit as a separate household unit.
The landlord argued that the house was newly constructed and complied with all aspects of the Building Act, and that it had building consent for residential use.
While the premises can be occupied, generally, for residential purposes, as the building has Council consent for residential use, an issue potentially arises when looking at the division of the premises into two separate household units, rather than the original single unit.
Given both limbs of section 78A(2) must be satisfied before a premises is deemed an unlawful residential premises, it is useful to consider section 36 and 45(1)(c) when considering whether the use of the premises in this particular manner is unlawful, as if the occupation of the premises is unlawful as a result of either section, it will be likely that the landlord’s failure to comply with those sections contributed to the unlawfulness of the occupation.
Section 45(1)(c), in this case, requires consideration of whether then landlord has complied with the provisions of the Building Act 2004.
Section 40 of the Building Act states that a household unit, being a building intended for residential occupation, must have a building consent and be certified as being compliant by having a code compliance certificate.
If it has neither, or a building consent only, then pursuant to the Act, it is an unlawful residential premises.
Sections 114 and 115 deal with the change of use of consented buildings.
Section 114 of the Building Act requires the owner to give notice of a change of use of the building, and makes failure to do so an offence.
Section 115 of the Building Act provides that 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; and (b) in any other case, 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,— (i) will comply, as nearly as is reasonably practicable, with every provision of the building code that relates to the following: (A) means of escape from fire, protection of other property, sanitary facilities, structural performance, and fire-rating performance: (B) access and facilities for persons with disabilities (if this is a requirement under section 118); and (ii) will,— (A) if it complied with the other provisions of the building code immediately before the change of use, continue to comply with those provisions; or (B) if it did not comply with the other provisions of the building code immediately before the change of use, continue to comply at least to the same extent as it did then comply.
To determine whether there has been a change in the use of a building, consideration must be given to the Buildings (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 (“the regulations”).
Change the use is defined in the regulations as: ...to change the use (determined in accordance with regulation 6) of all or a part of the building from one use (the old use) to another (the new use) and with the result that the requirements for compliance with the building code in relation to the new use are additional to, or more onerous than, the requirements for compliance with the building code in relation to the old use.
Regulation 6 states that every building or part of a building has a use as specified in the table in schedule 2 of the regulations.
The division of the building into two household units rather than the one it was consented as, is a change of use.
Accordingly, I consider this to be a change to the use of the building to which section 115 of the Building Act applies and the owner was required to obtain written notice from the Counsel that the building, in its new use, will comply with the Building Code.
There is no evidence of such written notice, nor is there evidence that the conversion of the premises into two household units was consented by the Council or compliant with the Building Code.
In fact, the correspondence from the Council indicates that there is no consent for the use of the premises as two separate household units.
Accordingly, I consider that the landlord has not complied with the Building Act, and consequently has failed to comply with section 45(1)(c) of the Act.
The failure to obtain consent to divide the premises into two household units, in my view, makes occupation of it in that particular manner, unlawful.
Accordingly, the premises is an unlawful residential premises.
Returning then, to section 78A of the Act. Section 78A provides that where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. 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.

Are there special circumstances warrant a reduction in the amount awarded?

Section 78A of the Act was introduced in 2017 in response to two High Court decisions relating to the jurisdiction of the Tribunal to determine applications relating to unlawful residential premises. At the time of introduction of the Bill, the then-Minister for Building and Constructions, the Hon Nick Smith referred to what he described as the “abhorrent” practice of renting out unconsented, non- compliant and unsafe properties to tenants. He noted: So the purpose of this part of the bill is to ensure that where landlords do rent out inappropriate properties, there is the capacity to hold those landlords to account. ... My view is that the amendments in this bill that make it plain that the tribunal has full jurisdiction over unlawful residential premises will strengthen the regulatory environment and ensure that those people who attempt to rent out such properties are held accountable.
I consider that the public policy behind the introduction of section 78A is: a. To hold landlords to account for choosing to expose tenants to the health and safety risks of renting out unconsented or non-compliant properties; b. To disincentivise the practice; and c. To ensure landlords don’t profit from the practice.
That said, by allowing the Tribunal to the discretion to reduce the amount awarded to tenants under s78A, I consider that Parliament intended there to be a distinction be drawn between premises that were unlawful on the basis of some type of regulatory technicality, but which were otherwise safe, healthy homes, and those property which created risks to health and safety.
In the present case, I consider that the amount order should be reduced to take into account the fact that the premises is consented for residential purposes, and other than the lack of consent for division into two household units, the granny flat is a warm, dry and safe premises appropriate for residential use. The tenant has had the benefit of the occupation of the unit without significant complaint. I consider it relevant that none of the tenant’s upheld claims relate to the condition of the premises.
I consider that an award of refund of rent is appropriate to reflect the fact that this is an unlawful premises, and also the fact that the tenant did not have access to kitchen facilities as anticipated at the signing of the agreement. I consider that a reduction in the amount awarded to take into account the factors set out above is also appropriate. In making the order of $2,500 compensation, I note that I do not intend to make an award in the landlord’s favour, for unpaid rent. Instead, the landlord is to refund the bond to the tenant. Taken as a whole, I consider this appropriate compensation.

Is anything owed for rent?

The tenancy ended was due to end on 2 January 2022. The tenant gave notice to terminate the tenancy on that date.
The landlord provided rent records showing the rent paid and seeking rent until the end of the tenancy.
Given my finding that this was an unlawful residential tenancy, I am not minded to make an award for unpaid rent. This was factored into the decision on appropriate compensation for this being an unlawful residential tenancy.
The landlord’s application for rent arrears is dismissed.
That being the case, the bond that was released to the landlord is to be reimbursed to the tenant. Failure to Maintain
Jared Keys and Natasha Keys claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide an adequate means for the collection and storage of water if there is no reticulated supply
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenant alleges that the landlord did not provide access to potable water, as the tap in the laundry area was not connected to the approved water supply. The landlord denies this. The landlord provided evidence that the tap in the laundry area was connected to the reticulated supply prior to the tenancy by a registered plumber. I consider this was an acceptable means for water to be provided to the unit, and the tenant has not proved this portion of the claim,
Accordingly, it is dismissed. Loss of Amenity
The tenant claims that at the commencement of the tenancy they were provided with a washing machine and drier for their use. These were later moved from the laundry to an external shed, although the tenant still had access to them.
From 15 May 2021, when the tenant moved to China, and her portion of the house was rented to other tenants, there was no access to the washing machine and drier.
The landlord was not able to explain the situation with the drier in any detail. Although her evidence is broadly similar to the tenants.
Accordingly, I accept that use of the washing machine and drier was part of the tenancy agreement and its removal resulted in a loss of amenity. That lasted for approximately 7 months.
I consider some compensation is appropriate for the loss of amenity and award $500.00 pursuant to section 77(2)(n) of the Act. Utilities
The tenant seeks reimbursement of utilities – power and water – paid during the tenancy.
The tenant disputes liability for those outgoings as they are not exclusively attributable to his tenancy.
There was one water meter and account, and one electricity meter and account.
Section 39 of the Act states that tenants are liable for outgoings exclusively attributable to their occupation of the premises.
Instead of power and water being apportioned on the basis of consumption, the landlord divided the total invoices on a “per head” basis. In my view, this is inappropriate, and in breach of section 39 of the Act.
Accordingly, I consider that the tenant should be reimbursed for power and water paid. The problem the tenant faced, however, it that he has not been able to prove the total amount he paid. Even on perusal of his bank statements it is not clear what payments were for utilities.
Taking account of section 85 of the Act, I consider that the award of a nominal figure towards power and water is the best way to determine this issue in accordance with the substantial merits and justice of this case. I reach this conclusion by noting that the landlord breached the Act, on the one hand, but on the other, the tenant did have the benefit of use of the power and water for the duration of the tenancy. I consider that reimbursement of $750.00 is appropriate. Breach of Quiet Enjoyment
The tenant claims the landlord has harassed them.
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.
The tenant alleges the landlord breached this by sending multiple text messaged and emails about signing updated tenancy agreements. While this was likely inconvenient, I do not consider it was an intentional pattern of behaviour from the landlord to the tenant, designed to trouble, worry or distress him. Rather, the landlord believed she was formalising the agreement appropriately. This was done via text and email as that was the usual means of communication between the parties, and allowed the landlord to use google translate to ensure she understood the messages.
Accordingly, I do not accept that the landlord’s behaviour constitutes harassment.
The tenant’s claim is dismissed. Filing Fee
Because the tenants have substantially succeeded their claim, I have ordered reimbursement of the filing fee.
I do apologise to the parties for the delay in releasing this decision.

Tenancy Tribunal case 4472482 — Tenancy dispute at 1 Betsy Lane, Wainui, Wainui 0932

At a glance

Tenancy Tribunal case 4472482 — Tenancy dispute at 1 Betsy Lane, Wainui, Wainui 0932

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Were the premises occupied as a separate household unit?

Is the premises an unlawful residential premises?

Are there special circumstances warrant a reduction in the amount awarded?

Is anything owed for rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Were the premises occupied as a separate household unit?

Is the premises an unlawful residential premises?

Are there special circumstances warrant a reduction in the amount awarded?

Is anything owed for rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions