What was the outcome of Tenancy Tribunal case 4627379?

The tribunal order states: The Bond Centre must release the bond for 33 Whytehead Crescent, St Heliers,

How much money was awarded in case 4627379?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4627379?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4627379?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9827740-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4627379?

The tribunal order states: The Bond Centre must release the bond for 33 Whytehead Crescent, St Heliers,

How much money was awarded in case 4627379?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4627379?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4627379?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9827740-Tribunal_Order.pdf.

33 Whytehead Crescent, St Heliers, Auckland 1071 Tenancy Tribunal Case 4627379 — Mould & damp

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Reasons

Both parties attended the hearing: The applicant was represented by Mr Krishneel Prasad, and the respondent by Ashley Montgomery.

The tenant has applied for refund of the bond. The landlord considered she had a claim against the bond, but has not filed a counterclaim with Tenancy Services.

Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim.

The tenant made several requests for the landlord to consent to refund their bond. The landlord did not respond until November 2022, when they raised an issue with the state of the carpet at the end of the tenancy and refused to grant release of the bond.

However, no counterclaim has been filed by the landlord; they simply refuse to consent to the release of the bond. In my view this is unacceptable conduct on behalf of the landlord. The bond is refunded in full to the tenant.

The applicant made the following claims: a. The premises are an unlawful residential premises in that the downstairs was not consented to be used as a separate dwelling. b. The premises are in breach of the Healthy Homes Standards in that the downstairs area lacks ventilation and allows the ingress of moisture. c. The premises were in breach of the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 in that there was no smoke alarm downstairs. d. The landlord breached the tenants’ quiet enjoyment. e. The landlord stored their belongings in the premises.

The tenant is seeking refund of the rent for the unlawful premises and exemplary damages for the other claims.

Mr Prasad submitted that the tenant was induced to take the tenancy by the landlord representing the premises as being two self-contained premises at the start of the tenancy.

The premises consists of an upstairs with three bedrooms, living area(s) and utility areas, and a downstairs that consists of a bathroom, a hallway and a main room which includes a kitchenette and conservatory.

The main room downstairs was used by the tenants’ parents/parents-in-law as a bedroom/living room.

Mr Prasad submitted that at the outset of the tenancy, the tenant was seeking separate living areas for themselves and their parents/parents-in-law. The tenants considered this property suitable. The suitability of the premises for this purpose is not instructive on how it was marketed, and no documentary information was presented to the Tribunal in support of Mr Prasad’s assertion.

One tenancy agreement covers the whole premises and states that the tenancy is for a maximum of four adult tenants. This indicates that the whole premises is a single tenancy which was intended to be used by four adults, and this is what transpired. I am not pursuaded that the tenant was induced to taking the tenancy on the basis of a false representation from the landlord, nor that the premises was presented by the landlord as two separate dwellings.

The upstairs area of the house contained three bedrooms. The entry inspection report dated 13/7/16 provided at the hearing by the landlord, also covers the whole dwelling, upstairs and downstairs. It includes a handwritten addition for “Downstairs Studio / 4 th bdrm”. This handwritten addition indicates to me that the landlord knew that the downstairs area may be, or even was intended to be used by the tenants as a bedroom.

An Auckland City “APPLICATION FOR RESOURCE CONSENT AT 33 WHYTEHEAD CRESCENT KOHIMARAMA BY MRS ROBYN MONTGOMERY” dated 24 July 2001 was also provided to the Tribunal. This resource consent application is for a conservatory and carport, to the rear of the existing building.

A Code Compliance Certificate which may relate to the same project (although I could see no information that linked the two documents) dated April 8, 2002 was also provided by the landlord.

The downstairs area was used as more than a conservatory carport; the kitchenette is evidence of that.

Mr Prasad submitted that because the building consent application for the space and the usage of the space were different, (a carport and conservatory versus a bedroom/living area), the premises constituted an unlawful residential tenancy.

Putting aside the possibility that the further renovation may also have been consented at a later date, there is a body of jurisprudence that does not support Mr Prasad’s submission. The Residential Tenancies Act 1986 sets out unlawful residential premises as follows: 78AOrders of Tribunal relating to unlawful residential premises (2)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), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation. (3)Despite anything to the contrary elsewhere in this Act,— (a)unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i)any sum found to be owing by way of rent in arrear; or (ii)any other sum by way of damages or compensation: (b) 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.

An unlawful residential premises has been held by the Tenancy Tribunal to be a fully self-contained premises that is the subject of an exclusive tenancy agreement, or an entire premises with no building consent or resource consent at all, or a premises where an abatement notice or dangerous an insanitary building notice has been issued by council 1 .

This case does not fall into one of the above categories. This case involves an area of a lawful premises potentially being used for an unconsented activity. I am not persuaded by Mr Prasad’s submissions therefore, that the property was an unlawful residential premises and this claim is dismissed accordingly.

The remainder of the tenant’s claims seek remedies of exemplary damages.

The tenancy began on 10 July 2016 and ended on 28 February 2022 following a 28-notice period from the tenant. No variations to the Tenancy Agreement were put before the Tribunal.

Pursuant to the Residential Tenancies Act 1986, section 109, Unlawful Act, subsection (2), a party may not apply to the Tenancy Tribunal for exemplary damages later than – a) 12 months after the termination of the tenancy in the case of— (i)an unlawful act to which section 19(2) refers; or (ii)a failure to keep records in respect of bonds that is an unlawful act to which section 30(2) refers; or b) 12 months after the date of commission of the unlawful act in the case of any other unlawful act.

Clause a) refers to bonds and is not applicable to this case.

Clause b) is applicable to this case and sets out that the tenant’s application for exemplary damages needed to be filed with Tenancy Services within 12 months of the breaches being committed. This did not happen; the tenants made their application to Tenancy Services on 26 July 2023, just under one year and five months after the end of the tenancy. The breaches the tenant referred to date back as far as 2016; none that were put before the Tribunal today were first detected after March 2021 more than two years before the Tenant’s application was made. As such the applications are time-barred and are dismissed accordingly. 1 [2022] NZTT [Event location suppressed] 4209883, 4320590

Mr Prasad submitted that the reason no application was made to the Tribunal earlier was because the tenants feared retaliation, suffered from a power imbalance in the relationship, and were in essence bullied by the landlord. Other than some correspondence regarding the installation of fibre-optic cable in 2017, which I find unconvincing, there was no documentary evidence to support Mr Prasad’s assertion. Copies of text messages which were submitted illustrate a friendly and functional relationship between the parties.