What was the outcome of Tenancy Tribunal case 4690689?

The tribunal order states: Anthony Warren Kairuz must pay Jessica Margaret Carbin $2,520.44

How much money was awarded in case 4690689?

Compensation: Breach of peace, comfo…: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Partial Rent Refund - Unlawful Resid…: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4690689?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4690689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9736001-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4690689?

The tribunal order states: Anthony Warren Kairuz must pay Jessica Margaret Carbin $2,520.44

How much money was awarded in case 4690689?

Compensation: Breach of peace, comfo…: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Partial Rent Refund - Unlawful Resid…: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4690689?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4690689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9736001-Tenancy_Tribunal_Order.pdf.

4 Kara Road, Maungatapere, RD 9, Whangarei 0179 Tenancy Tribunal Case 4690689 — Healthy homes

Claims and awards in Tenancy Tribunal application 4690689 — net $2,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Partial rent refund - unlawful residential premises	$1,500.00	Partial rent refund - unlawful residential premises
Exemplary damages: Failure to provide written tenancy agreement and healthy homes statement	$500.00	Failure to provide written tenancy agreement and healthy homes statement
Compensation: Breach of peace, comfort, and privacy	$500.00	Breach of peace, comfort, and privacy
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,520.44
Total payable by Landlord to Tenant	$2,520.44

Order

Anthony Warren Kairuz must pay Jessica Margaret Carbin $2,520.44 immediately, calculated as shown in table below.

Reasons

Background

The tenanted premises is one of two small cabins built by the landlord on a lifestyle block in Maungatapere.
The tenancy began 7 July 2023 and ended on 23 October 2023.
There is no written tenancy agreement.
The landlord’s application seeks rent arrears.
The tenant’s application seeks refund of rent on the grounds that the premises are unlawful residential premises, and exemplary damages under several headings.
The hearing took place in Whangarei on 1 December 2023. Both parties attended the hearing. Tenant application Unlawful residential premises
Unlawful residential premises are premises that 1 : a. Are used as a place of residence; but that b. Cannot be lawfully occupied for residential purposes; and c. The unlawful occupation was caused by the landlord’s failure to: i. Take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to occupation 2 ; or ii. Comply with all requirements in respect of buildings, health, and safety under any enactment that applies to the premises 3 .
Mr Kairuz built the cabins himself.
The premises do not comply with all enactments in respect of building in that: a. The building work could not be legally carried out without a building consent; and b. Only one dwelling is permitted on the property, per the terms of the resource consent granted for the sub-division that created the title. There is an existing dwelling on the property, so even if Mr Kairuz had sought consent for the cabins, it would not have been granted.
The cabins cannot be lawfully used for residential occupation.
The unlawful occupation was caused by Mr Kairuz failing to comply with all enactments
The premises are unlawful residential premises.
If the Tribunal makes a finding that premises are unlawful residential premises, the Tribunal: 1 Section 78A(2) RTA 2 Section 36 RTA 3 Section 45(1)(c) RTA a. May order the landlord to pay to the tenant the whole amount of rent paid for the period during which the premises were unlawful (in this instance, the entirety of the tenancy); or b. May order the landlord to pay an amount being the whole amount of rent “less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter including the nature of the premises, it is fair to deduct” 4 .
Ms Carbin paid a total of $3,150.00 during this brief tenancy. Some of those payments were intended to be towards the bond, but Ms Carbin did not pay the full amount of the bond, and the landlord applied all of her payments to rent once she fell into arrears.
As noted above, the ‘starting point’ in unlawful residential premises is that the tenant receives back all of the rent that they paid during the tenancy. This reflects the principle that unlawful premises should not be tenanted.
However, the discretion to award a lesser amount, thereby allowing the landlord to retain some of the rent, allows the Tribunal to take into account that types of unlawful residential premises can vary significantly.
In previous decisions, the Tribunal has taken into account a range of factors in considering the “special circumstances of the matter”, including 5 : a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenant’s motivation for renting the property and bringing the claim, and the length of time the tenant lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenant 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. 4 Section 78A(4)(a) RTA 5 Graham & Kranham Ltd v Shaw [2021] NZTT 4298196, 4294929, Christall v O’Neill Developers Ltd [2022] NZTT 434478, Tenant v Executive Property Management Residential Rentals Ltd [2022] i. The public interest in discouraging unlawful tenancies. j. Any other compensation or exemplary damages that are ordered.
Ms Carbin’s photographs show that the premises are comfortable, well appointed, and well built.
Ms Carbin’s claim is not opportunistic.
The regulatory breaches are substantial, and not just technical in nature.
Balancing these factors, my finding is that it would be unfair to require the landlord to refund all of the rent.
The landlord is to refund to the tenant the sum of $1,500.00. Failure to provide a written tenancy agreement and a healthy homes statement
Landlords must provide tenants with a written tenancy agreement, signed by the landlord, at the commencement of the tenancy 6 .
A breach of this duty is an unlawful act 7 . Exemplary damages of up to $750.00 can apply.
Landlords must provide tenants with a healthy homes statement 8 .
A breach of this duty is an unlawful act 9 . Exemplary damages of $750.00 can apply.
The Tribunal may award exemplary damages if an unlawful act was committed intentionally. In considering an award of exemplary damages, the Tribunal must have regard to: 10 a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest.
The usual approach of the Tribunal is to award one-third of the maximum unless there are aggravating or mitigating factors in play 11 .
Mr & Mrs Kairuz have not been landlords before. They thought that a verbal agreement was satisfactory. When Ms Carbin asked for tenancy agreement, 6 Section 13(2) RTA 7 Section 13(4)(a) RTA 8 Section 13A(1CA) RTA 9 Section 13A(1F) RTA 10 Section 109 RTA 11 Wellington Property Management Ltd v Hardie [2022] NZTT 4399281 4374781 they took some steps towards preparing one, but by then the relationship between themselves and Ms Carbin was strained.
The landlords failed to meet their legal duty and it is appropriate to award exemplary damages. The total maximum exemplary damages for both breaches is $1,500.00.
I will award total exemplary damages of $500.00. Breach of quiet enjoyment
Landlords must not “cause or permit” any interference with the tenant’s reasonable peace, comfort and privacy 12 .
Landlords must take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the tenant’s reasonable peace, comfort, and privacy 13 .
On 2 August, Ms Carbin sent Mrs Kairuz a message stating: Just thought I would message to let you know that I’m a little concerned about the neighbour in the other cabin (the guy). He has come over to my cabin at early hours of the morning and knocking on my door [...] Don’t want you to say anything as I don’t want things to escalate, just thought that I would let you know that if it continues I will end up looking elsewhere for accommodation
Mrs Kairuz replied: I have taken your comments on board and agree you should be able to feel comfortable in your cabin
Mr Kairuz then approached the neighbour about Ms Carbin’s allegations.
Ms Carbin submitted that this had the effect that she feared – the neighbour was angry and aggressive towards her.
Ms Carbin submitted that on one occasion when Mr & Mrs Kairuz visited her to talk about rent arrears the neighbour walked past and swore at her, and Mr & Mrs Kairuz took no action.
Ms Carbin left the tenancy because of her concerns about the neighbour.
I accept that Mr Kairuz’s approach to the neighbour was well intentioned. When one tenant complains about behaviour by another tenant, a typical “reasonable step” would be for the landlord to speak to the other tenant about the complaint.
However, in this instance Ms Carbin’s message was clear, and her request was reasonable. 12 Section 38(2) RTA 13 Section 45(1)(e) RTA
Mr Kairuz’s action had the unintended, but perfectly foreseeable, consequence of causing further interference with Ms Carbin’s peace, comfort, and privacy.
It is not appropriate to make an award of exemplary damages. The circumstances do not amount to harassment of the tenant by the landlord 14 .
However, it is appropriate to make an award of compensation on the grounds that there was a breach of a legal duty owed to Ms Carbin, and the breach caused her inconvenience and distress.
I will award compensation of $500.00. Landlord application
The landlord’s rent record establishes rent arrears of $1,050.00 to the end of the tenancy.
As discussed above, the premises are unlawful residential premises.
Where the premises are unlawful residential premises, the Tenancy Tribunal must not order the tenant to pay the landlord any rent arrears or any damages or compensation “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 award rent arrears or damages 15 .
I have made a finding that, having regard to the special circumstances of the matter including the nature of the premises, Ms Carbin is to receive a rent refund of $1,500.00.
This outcome means that there are no rent arrears. Filing fee, name suppression
Ms Carbin does not seek name suppression.
The landlord sought name suppression. The Tribunal must award name suppression if a party has “substantially succeeded” in the proceedings 16 .
Mr Kairuz has not substantially succeeded in this instance.
The Tribunal may grant name suppression to any party “having regard to the interests of the parties and to the public interest” 17 .
In this instance: a. There may be some legitimate public interest in the proceedings. 14 Section 39(3) RTA 15 Section 78A(3)(a) RTA 16 Section 95A(1) RTA 17 Section 95A(4) RTA b. There is no personal information in this decision that makes it unsuitable for publication.
The request for name suppression is declined.

Claims and awards in Tenancy Tribunal application 4690689 — net $2,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Partial rent refund - unlawful residential premises	$1,500.00	Partial rent refund - unlawful residential premises
Exemplary damages: Failure to provide written tenancy agreement and healthy homes statement	$500.00	Failure to provide written tenancy agreement and healthy homes statement
Compensation: Breach of peace, comfort, and privacy	$500.00	Breach of peace, comfort, and privacy
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,520.44
Total payable by Landlord to Tenant	$2,520.44

Order

Anthony Warren Kairuz must pay Jessica Margaret Carbin $2,520.44 immediately, calculated as shown in table below.

Reasons

Background

The tenanted premises is one of two small cabins built by the landlord on a lifestyle block in Maungatapere.
The tenancy began 7 July 2023 and ended on 23 October 2023.
There is no written tenancy agreement.
The landlord’s application seeks rent arrears.
The tenant’s application seeks refund of rent on the grounds that the premises are unlawful residential premises, and exemplary damages under several headings.
The hearing took place in Whangarei on 1 December 2023. Both parties attended the hearing. Tenant application Unlawful residential premises
Unlawful residential premises are premises that 1 : a. Are used as a place of residence; but that b. Cannot be lawfully occupied for residential purposes; and c. The unlawful occupation was caused by the landlord’s failure to: i. Take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to occupation 2 ; or ii. Comply with all requirements in respect of buildings, health, and safety under any enactment that applies to the premises 3 .
Mr Kairuz built the cabins himself.
The premises do not comply with all enactments in respect of building in that: a. The building work could not be legally carried out without a building consent; and b. Only one dwelling is permitted on the property, per the terms of the resource consent granted for the sub-division that created the title. There is an existing dwelling on the property, so even if Mr Kairuz had sought consent for the cabins, it would not have been granted.
The cabins cannot be lawfully used for residential occupation.
The unlawful occupation was caused by Mr Kairuz failing to comply with all enactments
The premises are unlawful residential premises.
If the Tribunal makes a finding that premises are unlawful residential premises, the Tribunal: 1 Section 78A(2) RTA 2 Section 36 RTA 3 Section 45(1)(c) RTA a. May order the landlord to pay to the tenant the whole amount of rent paid for the period during which the premises were unlawful (in this instance, the entirety of the tenancy); or b. May order the landlord to pay an amount being the whole amount of rent “less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter including the nature of the premises, it is fair to deduct” 4 .
Ms Carbin paid a total of $3,150.00 during this brief tenancy. Some of those payments were intended to be towards the bond, but Ms Carbin did not pay the full amount of the bond, and the landlord applied all of her payments to rent once she fell into arrears.
As noted above, the ‘starting point’ in unlawful residential premises is that the tenant receives back all of the rent that they paid during the tenancy. This reflects the principle that unlawful premises should not be tenanted.
However, the discretion to award a lesser amount, thereby allowing the landlord to retain some of the rent, allows the Tribunal to take into account that types of unlawful residential premises can vary significantly.
In previous decisions, the Tribunal has taken into account a range of factors in considering the “special circumstances of the matter”, including 5 : a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenant’s motivation for renting the property and bringing the claim, and the length of time the tenant lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenant 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. 4 Section 78A(4)(a) RTA 5 Graham & Kranham Ltd v Shaw [2021] NZTT 4298196, 4294929, Christall v O’Neill Developers Ltd [2022] NZTT 434478, Tenant v Executive Property Management Residential Rentals Ltd [2022] i. The public interest in discouraging unlawful tenancies. j. Any other compensation or exemplary damages that are ordered.
Ms Carbin’s photographs show that the premises are comfortable, well appointed, and well built.
Ms Carbin’s claim is not opportunistic.
The regulatory breaches are substantial, and not just technical in nature.
Balancing these factors, my finding is that it would be unfair to require the landlord to refund all of the rent.
The landlord is to refund to the tenant the sum of $1,500.00. Failure to provide a written tenancy agreement and a healthy homes statement
Landlords must provide tenants with a written tenancy agreement, signed by the landlord, at the commencement of the tenancy 6 .
A breach of this duty is an unlawful act 7 . Exemplary damages of up to $750.00 can apply.
Landlords must provide tenants with a healthy homes statement 8 .
A breach of this duty is an unlawful act 9 . Exemplary damages of $750.00 can apply.
The Tribunal may award exemplary damages if an unlawful act was committed intentionally. In considering an award of exemplary damages, the Tribunal must have regard to: 10 a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest.
The usual approach of the Tribunal is to award one-third of the maximum unless there are aggravating or mitigating factors in play 11 .
Mr & Mrs Kairuz have not been landlords before. They thought that a verbal agreement was satisfactory. When Ms Carbin asked for tenancy agreement, 6 Section 13(2) RTA 7 Section 13(4)(a) RTA 8 Section 13A(1CA) RTA 9 Section 13A(1F) RTA 10 Section 109 RTA 11 Wellington Property Management Ltd v Hardie [2022] NZTT 4399281 4374781 they took some steps towards preparing one, but by then the relationship between themselves and Ms Carbin was strained.
The landlords failed to meet their legal duty and it is appropriate to award exemplary damages. The total maximum exemplary damages for both breaches is $1,500.00.
I will award total exemplary damages of $500.00. Breach of quiet enjoyment
Landlords must not “cause or permit” any interference with the tenant’s reasonable peace, comfort and privacy 12 .
Landlords must take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the tenant’s reasonable peace, comfort, and privacy 13 .
On 2 August, Ms Carbin sent Mrs Kairuz a message stating: Just thought I would message to let you know that I’m a little concerned about the neighbour in the other cabin (the guy). He has come over to my cabin at early hours of the morning and knocking on my door [...] Don’t want you to say anything as I don’t want things to escalate, just thought that I would let you know that if it continues I will end up looking elsewhere for accommodation
Mrs Kairuz replied: I have taken your comments on board and agree you should be able to feel comfortable in your cabin
Mr Kairuz then approached the neighbour about Ms Carbin’s allegations.
Ms Carbin submitted that this had the effect that she feared – the neighbour was angry and aggressive towards her.
Ms Carbin submitted that on one occasion when Mr & Mrs Kairuz visited her to talk about rent arrears the neighbour walked past and swore at her, and Mr & Mrs Kairuz took no action.
Ms Carbin left the tenancy because of her concerns about the neighbour.
I accept that Mr Kairuz’s approach to the neighbour was well intentioned. When one tenant complains about behaviour by another tenant, a typical “reasonable step” would be for the landlord to speak to the other tenant about the complaint.
However, in this instance Ms Carbin’s message was clear, and her request was reasonable. 12 Section 38(2) RTA 13 Section 45(1)(e) RTA
Mr Kairuz’s action had the unintended, but perfectly foreseeable, consequence of causing further interference with Ms Carbin’s peace, comfort, and privacy.
It is not appropriate to make an award of exemplary damages. The circumstances do not amount to harassment of the tenant by the landlord 14 .
However, it is appropriate to make an award of compensation on the grounds that there was a breach of a legal duty owed to Ms Carbin, and the breach caused her inconvenience and distress.
I will award compensation of $500.00. Landlord application
The landlord’s rent record establishes rent arrears of $1,050.00 to the end of the tenancy.
As discussed above, the premises are unlawful residential premises.
Where the premises are unlawful residential premises, the Tenancy Tribunal must not order the tenant to pay the landlord any rent arrears or any damages or compensation “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 award rent arrears or damages 15 .
I have made a finding that, having regard to the special circumstances of the matter including the nature of the premises, Ms Carbin is to receive a rent refund of $1,500.00.
This outcome means that there are no rent arrears. Filing fee, name suppression
Ms Carbin does not seek name suppression.
The landlord sought name suppression. The Tribunal must award name suppression if a party has “substantially succeeded” in the proceedings 16 .
Mr Kairuz has not substantially succeeded in this instance.
The Tribunal may grant name suppression to any party “having regard to the interests of the parties and to the public interest” 17 .
In this instance: a. There may be some legitimate public interest in the proceedings. 14 Section 39(3) RTA 15 Section 78A(3)(a) RTA 16 Section 95A(1) RTA 17 Section 95A(4) RTA b. There is no personal information in this decision that makes it unsuitable for publication.
The request for name suppression is declined.

Tenancy Tribunal case 4690689 — Healthy homes at 4 Kara Road, Maungatapere, RD 9, Whangarei 0179

At a glance

Tenancy Tribunal case 4690689 — Healthy homes at 4 Kara Road, Maungatapere, RD 9, Whangarei 0179

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions