What was the outcome of Tenancy Tribunal case 4492560?

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

How much money was awarded in case 4492560?

Compensation: Power: $721.40 awarded to tenant; Compensation: Unlawful residential p…: $10,985.14 awarded to tenant; Rent Arrears: $7,300.00 awarded to landlord

What type of tenancy dispute was case 4492560?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4492560?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9164201-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4492560?

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

How much money was awarded in case 4492560?

Compensation: Power: $721.40 awarded to tenant; Compensation: Unlawful residential p…: $10,985.14 awarded to tenant; Rent Arrears: $7,300.00 awarded to landlord

What type of tenancy dispute was case 4492560?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4492560?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9164201-Tribunal_Order.pdf.

542 No 1 Road, Te Puke, RD 2, Te Puke 3182, Tenancy Tribunal Case 4492560 — Rent arrears

Claims and awards in Tenancy Tribunal application 4492560 — net $4,406.54 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 3 August 2023	$7,300.00		Rent arrears to 3 August 2023
Compensation: Unlawful residential premises		$10,985.14	Unlawful residential premises
Compensation: Power		$721.40	Power
Total award	$7,300.00	$11,706.54
Net award		$4,406.54
Total payable by Landlord to Tenant		$4,406.54

Claims and awards in Tenancy Tribunal application 4492560 — net $4,406.54 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 3 August 2023	$7,300.00		Rent arrears to 3 August 2023
Compensation: Unlawful residential premises		$10,985.14	Unlawful residential premises
Compensation: Power		$721.40	Power
Total award	$7,300.00	$11,706.54
Net award		$4,406.54
Total payable by Landlord to Tenant		$4,406.54

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Ranvir Singh Mann must pay Manjit Singh and Gurpal Singh Dandiwal $4,406.54 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The tenants seek the following: -Refund of all rent paid for this tenancy as they say the premises are unlawful. -Refund of all power. -Exemplary damages for harassment.
The tenants say they are seeking the Tribunal maximum of $100,000.
The landlord seeks termination of the tenancy and rent arrears. The landlord did not file a cross application, but I accepted the claims on an informal basis as the tenant agreed that the claims should be heard together.
The parties are required to establish the claims to the civil law standard of proof, on the balance of probabilities.
The parties should be aware that this decision does not necessarily recite every issue raised and the arguments for and against it but is intended to be a summary of the key issues requiring determination as set out at the start of the hearing.
For the record, the healthy homes compliance date for this tenancy is 1 July 2025. The only exception is insulation as that compliance date is 1 July 2019.
The relevant issues to be decided are as follows: a. Can the premises be lawfully occupied for residential purposes? b. How much, if anything, is owed to the tenants for shared power? c. Has the landlord harassed the tenants? d. Should the tenancy be terminated for rent arrears?
This tenancy commenced in and around 6 June 2015. There is no written tenancy agreement and no inspection reports. The tenancy is due to end on 3 August 2023 on foot of a 90-day notice.

Can the premises be lawfully occupied for residential purposes?

The Tribunal may declare premises to be unlawful residential premises. 1 See section 77(2)(ac) Residential Tenancies Act 1986. 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 sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
The premises consists of a 2-room unit with kitchen and bathroom unit attached to a large shed.
The landlord says that a building permit was issued by Tauranga City Council in 1983 as per their letter of 10 March 1983, and the premises does not have building consent as this was not introduced until 1993. The landlord says that 1 Section 77(2)(ac) and section 78A inserted, on 27 August 2019, by section 17(1) and 19 of the Residential Tenancies Amendment Act 2019 (2019 No 37). the insulation will be done when the tenants leave, and they were not made aware of any other issues. The landlord says any mould in the premises has been caused by the tenants failing to ventilate.
While Council consented to the establishment of living accommodation for persons engaged in work on the property within the existing implement shed/lunchroom building back in 1983, this was also subject to the following 6 conditions: (1) That the applicant provide a minimum five cubic metres of water storage capacity adjacent to the proposed workers accommodation to the satisfaction of the County Engineer. (2) That the dwelling comply in all respects with the building code requirements for residential buildings and to council’s Code of Ordinances to the satisfaction of Council’s Chief Inspector. (3) That approved fire separation be provided between the proposed dwelling and the shed to the satisfaction of council’s Chief Inspector. (4) That the use not be commenced until all the aforegoing conditions have been complied with. (5) That the residential occupancy of the dwelling be limited to four persons in compliance with the Department of Labours requirements. (6) That the applicant be advised that a normal building permit application should be made.
A previous hearing of this matter was adjourned to give the landlord fair opportunity to provide more documentation and in particular, all documentation relating to the above conditions.
The landlord has not provided any further documentation.
In the absence of any evidence to the contrary, I therefore find that the premises cannot be lawfully occupied for residential purposes. There is no dispute that the tenants were never employed by the landlord in any capacity and there is no evidence that the 6 conditions attached to the original consent were ever satisfied.
I find that the landlord caused or contributed to the unlawful occupation by failing to comply with section 36 RTA and section 45 RTA. Section 36 provides that landlord must 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. Under section 45, a landlord must (among other requirements) provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, and comply with any relevant enactment in relation to buildings, health and safety. Landlords must ensure smoke alarms are working at the start of each new tenancy and remain in working order during the tenancy.
The provision of an approved form of heating for every living room is one of the requirements set out in the Housing Improvement Regulations 1947 (Regulation 6). In addition, Regulation 15 requires that every house shall be free from dampness therefore landlords must provide a house that is not prone to mould and promptly fix any defect creating mould.
While I acknowledge there is no documentary evidence that the tenant notified the landlord of repairs, landlords also have an obligation to carry out repairs that are apparent from observation. 2
The tenants rely on a Healthy Homes report dated 3 March 2023 which notes that there are no smoke alarms, insufficient insulation, western downpipe discharges to the ground, and there is no gutter or downpipe to the porch. It also notes, “a large area of decay is evident to the entry door indicating that water is penetrating from the exterior.” The photographs provided by the tenant show mould throughout the premises and on their belongings and there is no dispute that no form of heating has ever been provided. I find it more likely than not that the mould can be attributed to lack of heating, insulation and water penetration, rather than the tenants failing to ventilate.
I have heard conflicting evidence from the parties as to the smoke alarm being in working order at the start of the tenancy. I am unable to draw any conclusion on that specific issue based on the lack of supporting evidence. However, the landlord is under a continuing duty to ensure that smoke alarms remain in working order throughout the tenancy and it is clear that no checks were ever made by him.
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. 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. See sections 78A(3)(a), (4) and (5) RTA.
It is therefore incumbent on the Tribunal to decide on the special circumstances of each case, what would be fair to deduct from a return of all rent.
I also bear in mind that the Tribunal must determine each dispute according to the general principles of the law relating to the matter and the substantial merits 2 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities (see section 85(2) RTA).
I adopt the approach of several recent Tribunal decisions which have taken the following factors into account: a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenants’ motivation for renting the property and bringing the claim, and the length of time they lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenants received in renting the property. e. The seriousness of the regulatory breaches making the premises unlawful. f. Any other breaches by the landlord. g. Any detriment or loss the tenant suffered. h. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. i. The public interest in discouraging unlawful tenancies. i. Any other compensation or exemplary damages that are ordered.
I find that the special circumstances are significant. In particular, the tenants have been living at the premises for nearly 8 years and they only raised the claims after the parties had a disagreement about parking. There is no documentary evidence that the tenants made any complaints during the tenancy, and it is accepted that the landlord installed carpet in 2016, attended to plumbing repairs in 2020, installed exhaust fan and bathroom extraction fan and replaced power points and lightbulbs in November 2021, and added a porch in March 2022.
Taking everything into account, I find it appropriate to make an award of $10,985.14. This is calculated as 20% of all rent paid back to the date of the amendment 3 on 27 August 2019 as fair, reasonable and proportionate compensation. This takes into account the unlawful nature of the premises and the breaches.
The landlord should be mindful that there is a strong public interest in discouraging unlawful tenancies and ensuring that shortcuts are not taken. The landlord must ensure that the proper consents/permissions are in place if they intend to rent out the premises for future residential use. The current standing of the premises must be regularised to ensure that matters such as means of 3 Section 77(2)(ac) and section 78A inserted, on 27 August 2019, by section 17(1) and 19 of the Residential Tenancies Amendment Act 2019 (2019 No 37). escape from fire, sanitary facilities, and structural integrity are satisfied under the Building Code.

How much, if anything, is owed to the tenants for shared power?

By virtue of section 39 of the RTA, tenants are responsible for all outgoings in respect of the premises that are exclusively attributable to the tenants’ occupation of the premises or the tenants’ use of the facilities, including electricity.
Therefore, the intention of the Act is clear that tenants are only liable for power they actually use.
In this case, the tenants are seeking $7,214.03 for power paid since March 2019.
The landlord does not dispute that there is only one meter for the premises which includes the shed. The landlord says he allowed the tenants to use part of the shed for storage and to park their 2 cars from the start of the tenancy until December of 2022 when he then needed it to store his truck. The landlord says the shed is only used in daylight hours and to store machinery so any use of electricity by him was minimal as there are only 2 lightbulbs. The landlord confirmed he has recently changed the lock so the tenants can no longer use this area.
Firstly, I find that the parties agreed the tenants could use the shed for storage and to park their cars as an express term of tenancy. Although I acknowledge that the landlord constructed a porch in March of 2022 to help the tenants with storage, this area is inadequate as it is open to the elements on one side. No party can unilaterally change the terms of the agreement therefore the landlord was in breach when he began to exclude the tenants and when he recently changed the lock to that area. The landlord has effectively shut the tenants out of an area that they are still obliged to pay for as part of the agreed rent and shared power.
The tenant’s obligation to pay for outgoings based on usage presupposes their usage can be accurately measured (Nasmith v Powell [2017] NZTT 4080110). I find that the tenants were put in a position whereby they have been paying the entire cost of power for the shed and their living accommodation during the tenancy in breach of section 39 RTA. I also find it likely that the landlord has used power in the shed in addition to the 2 lightbulbs given the amount of machinery. The photographs show there is at least another power point where a light has been plugged in. There is no way of accurately calculating the tenants’ use as there was no separate meter or check meter and the tenants say the landlord should be responsible for 40%. However, there is no doubt that the tenant received the benefit of power during the tenancy, and they used the shed for storage and parking from 2015 to 2022. Applying the substantial merits and justice, I apply a 10% reduction to the power bills provided as a fair, reasonable and proportionate estimation of the landlord’s share and use. I therefore make an award of $721.40 to the tenants.

Has the landlord harassed the tenants?

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 tenants say that the landlord harassed them by text message of 26 January 2023 when he said, “... house and shed must be 100% clean otherwise I know how to get it done and get payment as well ...”. The tenants say the landlord sprayed their garden and killed their vegetables and flowers and denied access to the shed for parking.
I do not find sufficient evidence of harassment. The landlord was in India at the time the text message was sent, and I accept his evidence that this meant that he would take legal action against the tenants if they did not pay full rent. The photographs of the flowerpots and veggie patch are inconclusive as the pots have been removed by the tenants and the landlord denies spraying anything. While I accept that the landlord has denied access to the shed for parking in breach of the tenancy agreement, I do not find that this action amounts to harassment.
Accordingly, this part of the tenants’ claim is dismissed.

Should the tenancy be terminated for rent arrears?

The landlord has applied for termination of the tenancy, rent arrears and refund of the bond.
The landlord provided scant rent records, but the tenants do not dispute that they did agree to pay the arrears.
Section 78A makes it clear that the Tribunal cannot make an order for rent arears or compensation unless there are “special circumstances” making it just to make such an order. If the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.
I decline to terminate this tenancy. Given my previous findings, the tenants are technically not currently in arrears and the tenancy is ending (by notice) on 3 August in any event.
However, I find it fair and reasonable that the amount owing to the landlord for rent to the end of the tenancy is offset against the previous orders made. I am satisfied that it is just to make an order for $7,300.00 rent owing to the end of the tenancy on 3 August 2023.
Both parties have some degree of success in their claims before the Tribunal. The tenant paid a filing fee, but the landlord did not as he did not file a formal cross application. I decline to make any award to the tenants for their filing fee.

Tenancy Tribunal case 4492560 — Rent arrears at 542 No 1 Road, Te Puke, RD 2, Te Puke 3182,

At a glance

Tenancy Tribunal case 4492560 — Rent arrears at 542 No 1 Road, Te Puke, RD 2, Te Puke 3182,

At a glance

Award balance

Claims & awards

Order

Reasons

Can the premises be lawfully occupied for residential purposes?

How much, if anything, is owed to the tenants for shared power?

Has the landlord harassed the tenants?

Should the tenancy be terminated for rent arrears?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Can the premises be lawfully occupied for residential purposes?

How much, if anything, is owed to the tenants for shared power?

Has the landlord harassed the tenants?

Should the tenancy be terminated for rent arrears?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions