What was the outcome of Tenancy Tribunal case 4890292?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4890292?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4890292?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4890292?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10896162-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4890292?

The tribunal order states: The landlord’s application is dismissed.

How much money was awarded in case 4890292?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4890292?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4890292?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10896162-Tenancy_Tribunal_Order.pdf.

12 Burdale Street, Riccarton, Christchurch 8011 Tenancy Tribunal Case 4890292 — Rent arrears

Order

The landlord’s application is dismissed.

Reasons

This order follows a hearing on 2 September and the Tribunal’s order of the same date.
The landlord claims rent arrears and compensation following the end of the tenancy. The tenant disputes the claims.
The premises are part of a three-bedroom town house that the landlord and his wife have converted into two self-contained residential units. The ground floor unit was rented to the tenant.
The Tribunal raised the issue of whether the premises rented to the tenant could lawfully be occupied by the tenant (and his family) as residential premises. The relevant section of the Residential Tenancies Act 1986 (the Act) is set out below. 78A Orders of Tribunal relating to unlawful residential premises (1) This section applies in any matter where the Tribunal, on application by a party or otherwise on the evidence before the Tribunal in respect of any claim within its jurisdiction, determines or declares that the premises are, or were at any material time, 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. (4) Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in accordance with this Act in relation to the matter,— (a) the Tribunal may order the landlord to pay to 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 residential 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: (b) a section 78A work order may comprise or include an order that the landlord take the steps available to the landlord, as specified in the order, to (or to endeavour to)— (i) remove or rectify any impediment to the tenant lawfully occupying the premises for residential purposes; or (ii) comply with all requirements in respect of buildings, health, or safety under any enactment so far as they apply to the premises. (5) Even if the tenant does not apply for a particular order, the Tribunal may make any of the following orders on its own initiative: (a) any order under subsection (4)(a); and (b) any section 78A work order; and (c) any other order, authorised by this Act, that is in favour of the tenant (including, without limitation, an order under section 109 for an amount in the nature of exemplary damages for failure to comply with section 45(1)(c)
The landlord told the Tribunal that he had obtained building consent for the conversion, but he could say whether all required consents were obtained to be able to rent out the house as two separate residential units.
I therefore adjourned the hearing to enable the landlords to check with the City Council and, if necessary, the Regional Council and to provide evidence to the Tribunal that they had the necessary consents.
The landlord’s wife, Tuan Khanh Tran, has responded to the order and states that she owns the premises and therefore she is the landlord, not her husband. Mr Hannon is named as the landlord on the tenancy agreement and so that determines the question of who the landlord is. I note as well that Mr Hannon is the trustee of the trust that holds the premises.
Ms Tran now claims that the tenant did not have exclusive use of the ground floor of the house but rented a room only. That was in direct contradiction of the evidence that Mr Hanon gave at the hearing.
I note as well that the tenancy agreement refers to the ground floor area rented by the tenant. I have no hesitation in finding that the tenant had exclusive use of the ground floor and that the ground floor was entirely self-contained and separate of the first floor. Others occupied the first floor. This also consistent with the landlord’s claim which concerns the condition of the entire ground floor.
The landlord has not provided evidence to show that the house was consented for use as two separate residential units. The evidence provided indicates that there was retrospective building consent for an extension to the ground floor but not for a kitchen and wall separating the ground floor from the first floor. Even if such consent was given, it would not satisfy me that the house was consented for use as two separate residential units.
I find therefore that the premises rented to the tenant were unlawful residential premises. I also find that the landlord failed to comply with s36 of the Act by failing to take all reasonable steps to ensure that there was no legal impediment the premises being occupied as residential premises. Therefore, the Tribunal has the jurisdiction available to it under s78A of the Act.
Unless there are special circumstances here that make it unjust not to award rent arrears or compensation, the Tribunal must not award them.
I can see no special circumstances in this case that make it unjust to refuse to award the rent arrears and compensation. This was a blatant breach of the landlord’s obligation to ensure that the premises could be lawfully occupied. It is likely that the landlord chose to let the two units separately to maximise the income from them. That was at the tenant’s expense in terms of security of tenure and safety of the premises. Without the proper consents, there is an obvious risk that the required safety precautions, such as in the event of fire, were not put in place.
The landlord’s application is therefore dismissed.

Order

The landlord’s application is dismissed.

Reasons

This order follows a hearing on 2 September and the Tribunal’s order of the same date.
The landlord claims rent arrears and compensation following the end of the tenancy. The tenant disputes the claims.
The premises are part of a three-bedroom town house that the landlord and his wife have converted into two self-contained residential units. The ground floor unit was rented to the tenant.
The Tribunal raised the issue of whether the premises rented to the tenant could lawfully be occupied by the tenant (and his family) as residential premises. The relevant section of the Residential Tenancies Act 1986 (the Act) is set out below. 78A Orders of Tribunal relating to unlawful residential premises (1) This section applies in any matter where the Tribunal, on application by a party or otherwise on the evidence before the Tribunal in respect of any claim within its jurisdiction, determines or declares that the premises are, or were at any material time, 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. (4) Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in accordance with this Act in relation to the matter,— (a) the Tribunal may order the landlord to pay to 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 residential 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: (b) a section 78A work order may comprise or include an order that the landlord take the steps available to the landlord, as specified in the order, to (or to endeavour to)— (i) remove or rectify any impediment to the tenant lawfully occupying the premises for residential purposes; or (ii) comply with all requirements in respect of buildings, health, or safety under any enactment so far as they apply to the premises. (5) Even if the tenant does not apply for a particular order, the Tribunal may make any of the following orders on its own initiative: (a) any order under subsection (4)(a); and (b) any section 78A work order; and (c) any other order, authorised by this Act, that is in favour of the tenant (including, without limitation, an order under section 109 for an amount in the nature of exemplary damages for failure to comply with section 45(1)(c)
The landlord told the Tribunal that he had obtained building consent for the conversion, but he could say whether all required consents were obtained to be able to rent out the house as two separate residential units.
I therefore adjourned the hearing to enable the landlords to check with the City Council and, if necessary, the Regional Council and to provide evidence to the Tribunal that they had the necessary consents.
The landlord’s wife, Tuan Khanh Tran, has responded to the order and states that she owns the premises and therefore she is the landlord, not her husband. Mr Hannon is named as the landlord on the tenancy agreement and so that determines the question of who the landlord is. I note as well that Mr Hannon is the trustee of the trust that holds the premises.
Ms Tran now claims that the tenant did not have exclusive use of the ground floor of the house but rented a room only. That was in direct contradiction of the evidence that Mr Hanon gave at the hearing.
I note as well that the tenancy agreement refers to the ground floor area rented by the tenant. I have no hesitation in finding that the tenant had exclusive use of the ground floor and that the ground floor was entirely self-contained and separate of the first floor. Others occupied the first floor. This also consistent with the landlord’s claim which concerns the condition of the entire ground floor.
The landlord has not provided evidence to show that the house was consented for use as two separate residential units. The evidence provided indicates that there was retrospective building consent for an extension to the ground floor but not for a kitchen and wall separating the ground floor from the first floor. Even if such consent was given, it would not satisfy me that the house was consented for use as two separate residential units.
I find therefore that the premises rented to the tenant were unlawful residential premises. I also find that the landlord failed to comply with s36 of the Act by failing to take all reasonable steps to ensure that there was no legal impediment the premises being occupied as residential premises. Therefore, the Tribunal has the jurisdiction available to it under s78A of the Act.
Unless there are special circumstances here that make it unjust not to award rent arrears or compensation, the Tribunal must not award them.
I can see no special circumstances in this case that make it unjust to refuse to award the rent arrears and compensation. This was a blatant breach of the landlord’s obligation to ensure that the premises could be lawfully occupied. It is likely that the landlord chose to let the two units separately to maximise the income from them. That was at the tenant’s expense in terms of security of tenure and safety of the premises. Without the proper consents, there is an obvious risk that the required safety precautions, such as in the event of fire, were not put in place.
The landlord’s application is therefore dismissed.

Tenancy Tribunal case 4890292 — Rent arrears at 12 Burdale Street, Riccarton, Christchurch 8011

At a glance

Tenancy Tribunal case 4890292 — Rent arrears at 12 Burdale Street, Riccarton, Christchurch 8011

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions