What was the outcome of Tenancy Tribunal case 4789699?

The tribunal order states: It is declared that the premises are unlawful residential premises. Section 78A

How much money was awarded in case 4789699?

Compensation: Lock: $80.00 awarded to tenant; Compensation: Power Refund: $762.91 awarded to tenant; Compensation: rent refund - unlawful…: $8,040.00 awarded to tenant; Compensation: Water Refund: $1,412.34 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4789699?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4789699?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10366381-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4789699?

The tribunal order states: It is declared that the premises are unlawful residential premises. Section 78A

How much money was awarded in case 4789699?

Compensation: Lock: $80.00 awarded to tenant; Compensation: Power Refund: $762.91 awarded to tenant; Compensation: rent refund - unlawful…: $8,040.00 awarded to tenant; Compensation: Water Refund: $1,412.34 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4789699?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4789699?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10366381-Tenancy_Tribunal_Order.pdf.

11 Nacton Lane, Avondale, Auckland 1026 Tenancy Tribunal Case 4789699 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4789699 — net $10,565.69 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: rent refund - unlawful residential premises	$8,040.00	rent refund - unlawful residential premises
Compensation: water refund	$1,412.34	water refund
Compensation: power refund	$762.91	power refund
Exemplary damages: Bond not lodged	$250.00	Bond not lodged
Compensation: lock	$80.00	lock
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$10,565.69
Total payable by Landlord to Tenant	$10,565.69

Claims and awards in Tenancy Tribunal application 4789699 — net $10,565.69 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: rent refund - unlawful residential premises	$8,040.00	rent refund - unlawful residential premises
Compensation: water refund	$1,412.34	water refund
Compensation: power refund	$762.91	power refund
Exemplary damages: Bond not lodged	$250.00	Bond not lodged
Compensation: lock	$80.00	lock
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$10,565.69
Total payable by Landlord to Tenant	$10,565.69

Order

It is declared that the premises are unlawful residential premises. Section 78A Residential Tenancies Act 1986 (“RTA”).
Shivi Kumaria must pay Mohiuddin Syed $10,565.69 immediately.

Reasons

The tenant attended the hearing. The landlord did not attend the hearing.
The landlord had requested an adjournment because he had to travel from Taupo. He said that the staff member to take care of his business was away on holiday. He asked for a hearing after 10 July 2024.
The adjournment was not granted because the landlord did not originally give any reason why he could not travel from Taupo for the hearing. Later he advised that he is alone to manage his business and could not travel to Auckland. He advised that the other landlord named on the tenancy agreement could not travel alone to attend and her English was not good.
On the morning of the hearing a direction was made that the landlord could attend the hearing by telephone. The landlord was advised of the direction by email. The landlord did not reply. For the hearing two calls were made to the landlord’s phone number but the call went to voicemail.
As the adjournment sought was not granted the hearing proceeded in the landlord’s absence. Background
The tenancy began on 6 July 2021 and ended on 30 January 2024.
The weekly rent was $650.00. The bond was $1,950.00.
The premises is a five-bedroom home that has been divided in to two units. The tenant provided a helpful diagram of the two storeys. Downstairs comprises of the lounge, dining, kitchen, one bedroom and toilet together with the garage. Upstairs is a further two bedrooms and bathroom for unit one.
Unit two is on the upper level and comprises of two bedrooms and a bathroom. The landlord’s son lives in unit two.
There is a door between the two units. It is locked from unit 2 only which means that the occupants of unit 2 can access the upstairs of unit 1 at any time. There is no lock on unit 1’s side of the door. Tenant application
The tenant applied for exemplary damages for failure to lodge the bond, a claim in respect of the Healthy Homes standards, compensation in relation to water rates and power costs and compensation for lock repair.
The tenant also claims that the premises are unlawful residential premises. Unlawful residential tenancies
The Tribunal may declare premises to be unlawful residential premises. 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.
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. 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.
If the landlord has applied for termination for rent arrears, and the Tribunal declares the residential tenancy to be unlawful, the Tribunal may order termination, but it is not required to do so. See section 78A(3)(b) RTA.
It is necessary to consider whether the premises can be occupied as a separate household unit. There was no sharing of facilities such as the bathroom and kitchen between the two units.
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 35 or section 45(1)(c) caused or contributed to the unlawfulness of the occupation.
In the present case, the particular purpose is the occupation of the premises as a second household unit, separate to the other unit. While the premises can be occupied as the building as a whole has council consent for residential use, an issue arises when looking at the division of the premises into two separate household units.
The tenant had contacted Auckland Council in relation to whether there is consent for two separate units. He was advised that there is no record of any additional consented work on the property. The Council clarified that there is only one address so there is only one letterbox, rubbish bin and recycling bin.
The tenant had asked the owner for proof that the changes to the house were consented and signed off by Council, but the landlord did not reply to his request.
The tenant asked a Property Manager to inspect and advise whether it is likely that there is consent for two units. The Property Manager advised that the walls separating the two units should be thicker and insulated for sound proofing and for there to be a firewall door installed.
It is in the public interest that when a landlord offers premises for a residential tenancy that they take all steps to ensure that those premises are lawful. Adherence to the Building Codes is important as those codes set out minimum standards with such things as fire prevention and smoke alarms, insulation, ventilation, structural strength and integrity, escape routes for fire and sanitation.
Section 45(1)(c) of the RTA requires a landlord to comply with “all requirements of the buildings, health and safety so far as they apply to the premises”. I am satisfied on the evidence presented that the landlord has not complied with all the requirements in respect of buildings, health, and safety which is a breach of section 45 (1)(c) RTA and therefore the premises are unable to be lawfully occupied for residential purposes.
One of those enactments is the Building Act 2004. Sections 114 and 115 of the Building Act deals with the change of use of consented buildings. Section 115 states that where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, the territorial authority (in this case Auckland Council) must give the owner written notice that it 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.
No evidence was submitted to establish that the landlord had consent for the downstairs area to be used as a separate premise and therefore no consent for the change of use from one dwelling to two dwellings.
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 makes occupation of it in that particular manner, unlawful. Accordingly, the premises is an unlawful residential premises.
Where it finds unlawful residential premises section 78A(4) applies. S78A(4) states; The Tribunal may order the landlord to pay the tenant – (i)The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful premises; or (ii)An amount that is the sum referred to in subparagraph (i) 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.
I consider that section 78A(4)(a)(ii) should apply to this case because applying section 78A(4)(a)(i) would be unfair to the landlord as the tenant has had some amenity of living at the property.
At this point I must carefully weigh what amount of rent it is fair to deduct. Other than taking into account the nature of the premises, “the special circumstances” that I must have regard to are not stated within the RTA. However other Tribunal decisions have weighed the following factors: 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 he 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. i. The public interest in discouraging unlawful tenancies. j.Any other compensation or exemplary damages that are ordered.
The tenant stayed at the tenancy for 134 weeks. He paid rent of $87,750.00 at $650.00 per week. After taking account of the evidence and the circumstances I consider that the tenant should be refunded $60.00 per week for the term of the tenancy, amounting to $8,040.00. Specific factors in determining this award are: • safety and health concerns for the tenant and his family; • inconvenience of having one rubbish bin, recycling bin, letterbox and no designated parking; • security issue with the next-door tenant having a key to the tenancy. Bond not lodged
Mohiuddin Syed claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord did not lodge the bond with the Bond Centre. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
At the end of the tenancy the tenant was concerned that the bond would not be refunded to him. He stopped paying rent four weeks from moving out so that the three weeks of bond and one week in advance could be applied to the unpaid rent.
The landlord did not attend the hearing so gave no explanation for not lodging the bond. I note that the new tenant’s bond has been lodged so the landlord is aware of this requirement.
It is in the public interest for bonds to be lodged with the Bond Centre. I consider that an award of $250.00 is reasonable in the circumstances. Compensation - water
The tenant paid for water when the landlord provided the invoices on only three occasions. The landlord provided the first lost of invoices (August 2021 to January 2022) in December 2021. The landlord assessed the amount for the tenant to pay based on the number of occupants in the two units. The tenant paid $488.99.
The second lot of invoices (February 2022 to March 2023) was sent to the tenant in May 2023. The tenant paid $923.35.
The third lot of invoices (April 2023 to January 2024) was sent to the tenant in November 2023. The tenant refused to pay the amount that the landlord said he owed.
The law states that the tenant is responsible for charges for the supply of water if the water supplier charges on the basis of consumption 1 .
I note that in the calculation the landlord has included the fixed wastewater charge which the tenant is not liable for. The landlord is also not able to determine consumption of the water used by the tenant. 1 Section 39(4) Residential Tenancies Act 1986
In addition, the landlord has only on three occasions provided the invoices to the tenant over a two-and-a-half-year period.
The District Court has considered the issue of invoicing a tenant for water sometime after the amount was due. The conclusion reached in Woollams v Simpson 2 was that there was an implied term in the tenancy agreement that the landlord would provide accounts to the tenant at regular intervals so as to enable payment to be made.
In that case His Honour Judge McElrea said, “...where charges are made quarterly the clear implication is that the tenant will pay them quarterly unless some other arrangement is made. No such arrangement was made here. As a result, in my view, there is a requirement on the landlord seeking to rely on any such arrangement in the lease, that accounts be supplied quarterly or at least within a reasonable period such as within a few weeks after the account is due, unless some other arrangement is agreed between the parties.” 3
I agree with this reasoning. I consider that the tenant is not responsible for the water rates invoiced by the landlord because they are not based on his consumption and even if it was, the invoices were not provided to the tenant until sometime after the amount was due.
The tenant is refunded $1,412.34 which is the total of the two amounts ($488.99 and $923.35) paid by the tenant for water. Compensation - power
The tenant paid the total power bill for the premises. He says that this includes the power for the unit occupied by the landlord’s son and sometimes the landlord.
The tenant says that there is a hot water cylinder in his unit which supplies hot water to the other unit in addition with the power supplied.
The tenant produced a spreadsheet of the amount he paid for power, gas and broadband. The tenant solely used the gas and broadband so that is a cost for him to pay. The tenant paid a total of $3,051.65 (including GST) for power during the period he lived at the tenancy.
The tenant should be compensated for the power used by the other unit. I have calculated this amount at one quarter of the total amount. I have reimbursed the tenant $762.91 for power. 2 CIV–2005–004-1583, Akl, 16/3/2006 3 Paragraphs 12 and 13 Compensation - lock
The tenant claims the cost of having a locksmith visit to open an internal door where the landlord failed to provide a key. Two of the three bedrooms had locks on the doors and no keys were provided. During the tenancy the tenant’s son accidentally locked himself in the room and the tenant went to the expense of having a locksmith attend at the suggestion of the landlord.
The landlord should have either provided keys for these rooms or replaced the locks when the tenancy began. This was not safe for the tenant and his young family.
The tenant should be compensated the cost involved. I have awarded the cost of $80.00. Healthy Homes standards
The tenant claimed in respect of the Healthy Homes standards. As the tenancy commenced on 6 July 2021 the landlord had 90 days from commencement to comply with the standards.
At the hearing the tenant did not produce any evidence that the premises were non-compliant.
On the evidence I am unable to award exemplary damages when it is not clear that there has been an unlawful act. The tenant’s claim is dismissed.
Because Mohiuddin Syed has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4789699 — Exemplary damages at 11 Nacton Lane, Avondale, Auckland 1026

At a glance

Tenancy Tribunal case 4789699 — Exemplary damages at 11 Nacton Lane, Avondale, Auckland 1026

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