What was the outcome of Tenancy Tribunal case 4870583?

The tribunal order states: Rima Russell must immediately pay Oleg Nikitin $3,220.58, calculated as shown

How much money was awarded in case 4870583?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4870583?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4870583?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11305168-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4870583?

The tribunal order states: Rima Russell must immediately pay Oleg Nikitin $3,220.58, calculated as shown

How much money was awarded in case 4870583?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4870583?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4870583?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11305168-Tribunal_Order.pdf.

26 Juniper Road, Sunnynook, Auckland 0620 Tenancy Tribunal Case 4870583 — Healthy homes

Order

Rima Russell must immediately pay Oleg Nikitin $3,220.58, calculated as shown in the table below.
The landlord’s claim is dismissed. DescriptionTenant Rent repayment: 17.5 percent of $14,521.43 HHS loss of amenity: 5 percent Smoke alarm – nominal damages Tenancy agreement breaches $2,541.25 $301.07 $150.00 $150.00 Cost of petrol for moving$57.82 Filing fee reimbursement$20.44 Total award$3,220.58

Reasons

Both parties attended the hearing. 1
Oleg Nikitin attended with his wife, Natalia Lukinova.
Rima Russell attended with her daughter, Julia Bodyfelt.
In its decision of 29 July 2024, the Tribunal decided that the Tribunal has jurisdiction to hear the case. 2 This hearing was for the parties’ substantive claims.
Mr Nikitin claims that the landlord failed to provide a written tenancy agreement; 3 did not provide a Healthy Homes Standards (HHS) statement, nor insurance particulars; 4 did not provide receipts for the rent he paid; 5 failed to comply with the HHS for heating, insulation, and ventilation; 6 failed to install smoke alarms; 7 and that the premises are unlawful premises. 8
For remedy, Mr Nikitin seeks orders for repayment of rent, compensation, and reimbursement of the filing fee. 9
The landlord had intimated she would bring a claim against the tenant for compensation. However, she elected not to pursue the claim. Background
Mr Nikitin and Ms Lukinova are Russian-speaking immigrants, who arrived in New Zealand in 2023. Mr Russell, who sadly passed away last year, and Mrs Russell are also Russian-speaking but had lived in New Zealand for some decades.
The tenancy began on 5 October 2023 and ended on 18 April 2024.
At the time, Mr Russell was still alive. However, he was suffering from ill-health related to cancer and his doctors had given a terminal diagnosis. 1 The start of the hearing was delayed until 12:00pm because the Tribunal had not arranged a Russian interpreter. The Tribunal is grateful for interpreter Olga Robertson’s able assistance at late notice. 2 A decision of Adjudicator R Woodhouse, 29 July 2024. 3 Residential Tenancies Act 1986 (RTA), s 13. 4 RTA, s 13A. 5 RTA, s 29. 6 RTA, s 45(1)(bb); Residential Tenancies (Healthy Homes Standards) 2019 (HHS). 7 Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. 8 RTA, s 78A. 9 Mr Nikitin did not apply for exemplary damages prior to the hearing in accordance with RTA, s 109(1). Exemplary damages are therefore not available.
Mr Russell was a builder but had been unable to work fully for many years. Consequently, Mr and Mrs Russell were having financial difficulties. They decided to rent the downstairs part of their house to bolster their income.
The Russells’ daughter, Julia, had lived in the downstairs rooms with her husband for several years prior, but Julia and her husband also had access to the upstairs area.
The Russells advertised the premises on a Russian Facebook group page as follows: We will rent out the floor of the house with a separate entrance and exit to the backyard, 2 rooms, separate kitchen, bathroom, but shared laundry. There is everything necessary for the first time (furniture, dishes etc) for those who arrived or are planning to come. The house is located in Sunnynook, North Shore, Auckland...Short-term rentals and rentals up to several months are possible.
The advertisement included eight images of the premises, showing the premises had all the necessities and would be a pleasant place to live. The images did not include one wall of the living room, however. That wall was mostly taken up by two roller doors, showing that the living room was a converted internal garage.
The tenancy seems to have been without incident until late March of 2024 when the Mr Nikitin’s adult son and his dog moved in. Mr Nikitin says the main reason for the claim was because Mr and Mrs Russell made his family move out “in a rushed way”.
The parties disagree about how the tenancy ended. Mr Nikitin says Mr and Mrs Russell gave him one or two days’ notice.
Mrs Russell says she only told Mr Nikitin only that they would need to move out if they could not make alternative arrangements for their adult son and his dog.
Mr Nikitin did not make a specific claim for the Russells giving him an unlawful notice, but the abrupt move is an important part of his story. One of the reasons the tenancy ended as it did is that there was no tenancy agreement setting out how the tenancy could be ended. Consequently, the tenant and his family did not know that the landlords had to give written notice and could only end the tenancy with good reason.
In this decision, I address liability for the claims first. I start with liability of the unlawful premises claim first because is overarches the other claims to some extent. I then deal with the other claims. I then discuss what remedies the Tribunal should order.

Are the premises unlawful premises?

The premises consisted of the parts of the premises that the tenant had exclusive use of. In its decision on jurisdiction, the Tribunal described the rooms that Mr Nikitin had exclusive use of as follows:
Based on what I have seen in the documents and photographs, and heard from the parties, I find that the tenants had exclusive use of: a. Two bedrooms b. Downstairs bathroom and toilet c. Kitchenette and lounge (converted garage). d. Downstairs hallway. e. Entry doors from exterior into downstairs hall Legal principles
The Tribunal may declare premises to be unlawful residential premises under s 77(2)(ac) of the Residential Tenancies Act 1986 (RTA).
Under s 78A(2) of the RTA, 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: o s 36 of the RTA (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); or o s 45(1)(c) of the RTA (comply with all requirements in respect of buildings).
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. 10
Relevantly for this case, household units may not be divided into smaller household units without fulfilling change of use rules which involve Council issuing a Certificate of Code Compliance. Section 115(1) of the Building Act 2004, provides: 10 RTA, s 78A(4)(a). 115 Code compliance requirements: change of use 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...
The Building Act defines “household unit” as follows: household unit— (b) means a building or group of buildings, or part of a building or group of buildings, that is— (i) used, or intended to be used, only or mainly for residential purposes; and (ii) occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household... Discussion
The Tribunal has found that the tenant had exclusive use of the downstairs area as described above. The only shared areas were the laundry and an outside area. The tenant’s premises were a “household unit” in terms of the Building Act because the premises were occupied as the home of one household.
Ms Russell accepts that Council has not given written notice permitting her to change her house from one household unit to two. Ms Russell caused the unlawful occupation by failing to take all reasonable steps to ensure there was no legal impediment to the occupation of the premises for residential purposes and failed to comply with all requirements in respect of buildings.
It follows that the premises was an unlawful premises under the Act. Rent reduction: legal principles
Where the Tribunal finds premises are unlawful residential premises under s 78A(4) of the RTA, it may order the landlord to (i) repay the tenant all the rent they paid; or (ii) a lesser amount of rent repayment that it finds fair having regard to the special circumstances of the case, including the nature of the premises.
I consider that s 78A(4)(ii) should apply to this case because applying s 78A(4)(i) would be unfair to the landlord.
The Court of Appeal in Parbhu 11 disparaged a sledgehammer response of a full rent reduction in response to “relatively footling” breaches: The effect of relying on that provision is that any relatively footling breach by a landlord (for instance, the incomplete planning or building consenting of an otherwise eminently safe and sound accessory unit)...would compel total restitution of rent paid regardless of the degree of benefit.
Consistently with these comments in Parbhu, any rent repayment the Tribunal orders should be proportionate to the seriousness of the breach. At the more serious end of the scale are premises that are virtual hovels, such as an unconsented converted garage that leaks and is infested by vermin. At the other end of the scale where there is a minor building consent irregularity, but the premises are “eminently safe and sound” a full rent reduction is not called for.
Recent District Court cases illustrate the approach that should be taken. In Chen v Kumar 12 the premises had been consented for use as a rest home (upstairs) and a residence for the past owner and family (downstairs). Originally, the rest home and residency were not physically divided, but before the tenancy began someone blocked access between the upstairs and downstairs to create two separate residential units. The landlord, Mr Chen, was convinced that he could lawfully rent the downstairs premises out. The Tribunal found however, the premises were unlawful and ordered about 30 per cent of the rent be returned to the tenant, which amounted to $45,000.00.
In the District Court, Judge DJ Clark agreed with the Tribunal that the premises were unlawful. However, he considered that on the facts as he found them, the rent reduction must be drastically reduced. Importantly, Mr Kumar very much wanted to stay in the premises and the premises were not “unsafe”: [95] Furthermore, Mr Kumar and his family enjoyed the occupancy of a premises and received the full benefit of those premises throughout the course of the tenancy. He wanted the tenancy to continue. I do not accept then the unit is necessarily “unsafe” given Mr Kumar’s enjoyment of the same. Arguably it falls into the category contemplated by the Court of Appeal as being technically in breach of planning or consenting obligations but otherwise could be safe. Certainly, until February 2021 Mr Kumar thought so as he wanted to remain there. [96] The Tribunal ordered Anemax (and now the landlord through my order) to pay Mr Kumar the sum of $45,000 (being a 30% reduction on the total rent paid). For the reasons set out I quash that order given that I find Mr Kumar had the full benefit of the premises during the tenancy, which including a discount during the period of construction. 11 Want v Parbhu & Patel as Trustees of the Impala Trust [2019] NZCA 674 at [31]. 12 Chen v Kumar [2022] NZDC 7783.
His Honour reduced the rent to be refunded to $2,000.00. That amount also took account of rent arrears of $3,165.71 (which the Tribunal had also declined to order). The District Court rent reduction of $2,000.00 amounts to about 3 per cent of the total rent paid. 13 If the $3,165.71 arrears are factored in the reduction is about 7.5 percent. 14
In Kemp v Elliot 15 the premises’ passed its final inspection which found the build to have been completed fully with the building consent. The final inspection report recorded that Council should issue the CCC upon the landlord paying the appropriate application fee.
Kemp was therefore the factual exemplar of “the incomplete planning or building consenting of an otherwise eminently safe and sound accessory unit”.
The Tribunal had ordered 30 per cent rent reduction (based on findings of fact that the District Court did not adopt), which resulted in a refund rounded up to $20,000.00. 16 However, Judge D J Clark quashed the Tribunal’s order and substituted an order for a rent reduction of $2,000.00. That figure amounts to a rent refund of about 3 per cent.
I must carefully weigh what amount of rent it is fair to deduct. The RTA does not specify the “special circumstances of the case” I must have regard to except for “the nature of the premises”.
Other special circumstances I find relevant are: 17 a. The parties’ knowledge of the breach and reasons for entering the tenancy. b. The tenant’s reasons for bringing the claim. c. The benefits the parties received. d. The seriousness of the regulatory breaches making the premises unlawful. e. Other orders the Tribunal will make. f.The detriment the tenants suffered. g. The purposes of discouraging tenancies of unlawful premises and ensuring landlords do not unfairly profit from unlawful premises. 13 The rent due to 9 March was $66,874.29. 14 The rent due to the end of the tenancy was $68,445.71. 15 [2022] NZDC 17792. 16 The total rent due to the end of the tenancy was $63,607.14. 17 See Janet Robertshawe’s 2019 conference paper, The Legacy of Anderson v FM Custodians: Section 78A Tenancies. The nature of the premises
The premises are located in a renovated part of the landlord’s own home. The work involved the creation of two bedrooms, a laundry, and a bathroom. The renovation work well done.
The problem with the premises is that it included a converted internal garage as the main living space and divided off the premises from the main part of the house.
The bedrooms and bathroom were good. The unit as a whole appears to be clean, modern, and tidy overall. However, the living/kitchen/dining area was fundamentally deficient. One wall it was mainly made up of metal garage roller doors and there were no windows.
The tenant and his family lived there in relative comfort much of the time. However, the living area got too hot and got too cold because of the lack of windows, the metal garage doors, and lack of a heater or heat pump. The parties reasons for entering the tenancy and their knowledge of the breach
Mrs Russell and her husband rented out the premises to get some badly needed income.
They were in difficult circumstances partly because of Mr Russell’s cancer battle. They were struggling financially.
Their daughter and her husband had previously occupied the downstairs (albeit she also had access to the main part of the house), so renting out the downstairs area separately seemed a reasonable thing to do. 18 Given Mr Russell’s terminal diagnosis, it was to be expected that they would want to retain their own private space.
The original weekly rent of $585.00 per week including power, water, and broadband connection, was not exploitive.
Mrs Russell says she and her husband had never formally rented out the downstairs area before and gave no thought to residential tenancy laws. It did not occur to them that they had to comply with the rigours of the RTA. In other words, according to Mrs Russell, she and her husband were ignorant of the law. 18 Although, their daughter and husband had also shared the main house.
Mr Nikitin does not accept Mrs Russell’s claim that she has never been a landlord before. He believes that the Russells cynically evaded their obligations. He says that Mrs Russell has mentioned earlier tenants who had damaged the premises.
However, Mr Nikitin has not provided documentary evidence that the landlords had separately rented out the premises previously for commercial gain.
I find it more likely than not that Mrs Russell and her husband were genuinely unaware of their obligations under the RTA, including the provisions of the Act dealing with unlawful premises.
The tenant and his family were new immigrants. They simply wanted a safe, comfortable, healthy place to live.
The tenant had no idea that the premises were unlawful premises or defective. The tenant and his family were in a vulnerable position. They had no experience with the New Zealand legal framework and trusted the landlord to comply with the law. The tenant’s reasons for bringing the claim
The tenant says he was initially motivated to bring a claim because he felt that the landlords had treated him and his family badly at the end of the tenancy by requiring them to leave at short notice.
It was only after he was given information and explored the legal principles that he realised the extent of the landlords’ breaches.
He seeks vindication for being the victim of the landlord’s non-compliance. The benefits the parties received from the tenancy
Assuming a water, power, and internet cost of about $85.00 per week, Mrs Russell and her husband received approximately $14,521.43 rental income over the 28 weeks and one day of the tenancy. 19
The tenant and his family looked after the premises and caused no problems.
The tenant and his family found the premises acceptable for the most part. They were clean and had the basic modern conveniences. They would likely have found some comfort in the landlords having a similar Russian background to their own and felt they could trust the landlords. 19 The tenant paid the landlords a total of $16,830.00. The rent and expenses was initially $585.00 per week, which increased to $735.00 per week when the tenant’s adult son and dog moved in. The seriousness of the breaches underlying the unlawfulness
To be eligible to be used as a separate household unit, the premises would, among other things, have had to have had windows for the living area.
The non-compliance meant the premises was less comfortable and less safe than it should have been.
Substantial building work would have been required for the premises to comply with the Building Act. The tenant’s detriment
The tenant endured less healthy, safe, and pleasant conditions than he ought to have.
The living room suffered from heat and cold extremes because it was not properly built for the purpose if was being used for. Other orders
The Tribunal is ordering compensation for loss of amenity for breach of the HHS assessed at five percent of the rent, and nominal damages for the landlord’s other breaches.
The rent reduction ordered takes those orders into account so that the totality of the order does not become excessive. Unfair profit and the public interest
Section 78A addresses a concern that landlords do not unfairly profit from unlawful premises and there is a public interest in discouraging tenancies of unlawful premises.
This calls for the rent reduction to be set at a level that deters and landlords from running the risk of renting out unlawful premises by depriving them of any unfair rental profit. Conclusion
I conclude the landlord should repay the tenant 17.5 per cent of the rent they paid (expenses assessed at about $85.00 per week are deducted).
That amounts to $2,541.25 in total.
I have double-checked whether that outcome is fair: I stand back and reconsider the factors discussed above against the final figure I have arrived at. The outcome is fair.

Did the landlord breach their HHS duties?

The HHS are a set of duties that apply to landlords who let residential tenancy premises. Their purpose is to set standards for the habitability and safety of residential premises.
In this case, Ms Russell did not meaningfully turn her mind to whether the premises complied with the HHS and other legal requirements. As a result, any compliance by the landlord with the standards was coincidental.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) required Ms Russell to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
Regulation 21 provides: 21 Openable windows or external doors (1) Each habitable space in the premises must have 1 or more qualifying windows or doors. (2) The total openable area of the qualifying windows or doors in the habitable space must be at least 5% of the floor area of the habitable space.
In this case the converted living room/kitchen room had no openable windows. The room was a double garage that had been pressed into service as a living room.
The insulation standard requires all premises to have ceiling and floor insulation subject to limited exceptions. There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
The living room had a concrete pad, so insulating the floor would not have been reasonably practicable. It is unclear whether the living room had ceiling insulation. Ms Russell should have provided the tenant with a written tenancy agreement that recorded whether the premises was insulated but she did not do so.
Mrs Russell says Council has fully consented her home which means that the HHS must have been met. However, Council has not consented he home being used as two household units, so the consent is inapplicable. Moreover, the HHS impose independent duties on landlords to those they have as property owners under the Building Act and related legislation.
The landlord was required to ensure the premises complied with the HHS on the 120th day after the tenancy commenced. 20 The compliance date was 1 February 2024.
I consider that the tenant should be further compensated for the loss of amenity from the landlord’s non-compliance with the HHS in addition to the order for refund of some of the rent.
I calculate the amount of the order at the rate of 5 percent from the compliance date, 1 February 2024.
The Tribunal orders $301.07 compensation for the breaches.

Did the landlord breach their smoke alarm duties?

Under s 45 of the Residential Tenancies Act 1986 landlords must comply with all requirements in respect of smoke alarms set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Clause 5(6) of the Regulations requires: (6) There must be at least 1 qualifying smoke alarm installed— (a) in the sleeping space; or (b) otherwise at the premises within 3 metres of the entrance (or main entrance) to the sleeping space.
Under clause 5(2) “[t]he requirements must be met at the commencement of the tenancy and at all subsequent times during the tenancy”. Under clause 7(1)(a) the smoke alarms must “be fully operational and otherwise in full working order, with no faults, defects, or damage”.
The premises did not have any working smoke alarms. The landlord breached her duties in that regard. 20 Residential Tenancies (Healthy Homes Standards) Regulations 2019, Schedule 1, Part 1, 2(2)(c).
The tenant and his family were put at greater risk than they should have due to the landlord’s breach. The landlord lived in the same building, so suffered similar risk from a fire that was detected before it took hold.
Thankfully, there was no serious fire, and the tenant did not experience tangible harm as a consequence.
The Tribunal orders $150.00 nominal damages. 21

Did the landlord breach her tenancy agreement duties?

Landlords must ensure that the tenancy agreement is in writing. 22
The tenancy agreement must contain basic details including: an insulation statement, HHS details, and the landlords’ insurance information.
The Russells never provided Mr Nikitin with a written tenancy agreement.
If the Russells had provided Mr Nikitin with a written tenancy agreement, the tenancy would probably have never proceeded because the landlords would have realised the premises was not suitable for a residential tenancy.
The Tribunal has already made orders that compensate the tenant for the substantive claims.
However, the breaches here underlaid the whole unfortunate affair and should be recognised.
The Tribunal orders $150.00 nominal damages.
The Tribunal also orders the tenant’s petrol cost for having to move. If the landlords had provided a tenancy agreement, the parties would have been aware of their rights and obligations and the tenancy would probably not have ended so abruptly and inconveniently for the tenant and his family. Petrol costs for other matters such as taking his children to school are not allowed because the alleged loss is too remote.

Did the landlord fail to provide rent receipts?

Mr Nikitin paid his rent in cash.
Under s 29 of the RTA, landlord must “forthwith” provide a written receipt for rent payments received in cash. 21 See: Peter Blanchard, Civil Remedies in New Zealand(2nd ed, 2011): Westlaw electronic resources at 1.6.10 for an explanation of nominal damages. 22 RTA, s 13.
Ms Russell does not deny she failed to provide receipts. By way of explanation, she maintains she was not aware of her obligations.
There is no suggestion that the landlords overcharged the tenants or were dishonest in accounting for the tenant’s rent payments.
No order is made for this breach. The Tribunal has already made orders against the landlord that demonstrate ignorance of the law will be no excuse. A further order is not called for. Filing fee
The landlord must reimburse the tenant for the filing fee. 23 Landlord’s claim
The landlord did not pursue her claim before me.
It is dismissed.

Tenancy Tribunal case 4870583 — Healthy homes at 26 Juniper Road, Sunnynook, Auckland 0620

Tenancy Tribunal case 4870583 — Healthy homes at 26 Juniper Road, Sunnynook, Auckland 0620

Order

Reasons

Are the premises unlawful premises?

Did the landlord breach their HHS duties?

Did the landlord breach their smoke alarm duties?

Did the landlord breach her tenancy agreement duties?

Did the landlord fail to provide rent receipts?

Order

Reasons

Are the premises unlawful premises?

Did the landlord breach their HHS duties?

Did the landlord breach their smoke alarm duties?

Did the landlord breach her tenancy agreement duties?

Did the landlord fail to provide rent receipts?