Published tribunal order
Tenancy Tribunal case 4972373 — State of repair at Room 7, 19 Ferry Parade, Herald Island, Auckland 0618
Decided 29 Nov 2024 · Published 29 Nov 2024 · Application 4972373
Tenant favoured
- State of repair
- Smoke alarms
- Healthy homes
- Boarding House
- Compensation
Order
- Greg Ryu must immediately pay Marielle Laurence Mutte $2,907.40, calculated as shown in the table below.
- Greg Ryu must by 21 December 2024, provide all of his tenants at 19 Ferry Parade, Herald Island with written tenancy agreements that comply with the Residential Tenancies Act 1986, using the template for residential tenancy agreements available on Tenancy Services’ website. DescriptionTenant Compensation$2,880.40 Filing fee reimbursement$27.00 Total award$2,907.40
Reasons
- Both parties attended the hearing.
- Ms Mutte claims Mr Ry breached his obligations under s 45 of the Residential Tenancies Act 1986 (RTA) to maintain the premises in a reasonable state of repair, comply with R Residential Tenancies (Healthy Homes Standards) 2019 (HHS), and the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Jurisdiction
- Mr Ryu claimed the Tribunal did not have jurisdiction to hear the claim. I have found that the Tribunal does have jurisdiction to hear the claim for the following reasons.
- Mr Ryu said that he understood that the arrangement between him and the tenant was a flatmate one. He regarded himself as the head tenant.
- The property is Mr Ryu’s family home where he was brought up for some years. His mother owns the property. She divides her time between Korea and New Zealand and usually stays in the house when she is in New Zealand.
- The property has six bedrooms, including the tenant’s sleep out. Currently, there are three people separately renting the three upstairs bedrooms and a couple renting the two-bedroom downstairs area.
- The agreement states any dispute between the parties had to be resolved by the Disputes Tribunal. However, landlords and tenants cannot contract out of the Residential Tenancies Act 1986 (RTA) and the labels a landlord and a tenant apply to themselves cannot change the reality of the relationship if it is truly a residential tenancy situation.
- Under s 4 of the RTA, the “Act applies to every tenancy for residential purposes except as specifically provided”.
- In the RTA, a “tenancy” is “in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy”. 1
- The agreement was for a tenancy because the tenant had the right to occupy the premises.
- There is an exclusion under the RTA that requires consideration, namely, where the landlord’s (or their family member’s) main use of the property is to live in the premises. Under s 5(1)(n) of the RTA, the Act is disapplied “where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family”.
- In this regard, in Musson v Dobrisek and others 2 , the District Court commented: 1 Residential Tenancies Act 1986 (RTA), s 2. 2 DC at Lower Hutt CIV-2006-032-36 [5 May 2006]. [41] Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed sitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.
- I am satisfied that the RTA is not excluded, and the tenancy was a residential tenancy that is governed by the RTA.
- It follows, the Tribunal has jurisdiction to hear the tenant’s claim. The tenant’s claims
- The tenancy began on 8 October 2023 and ended on 29 August 2024.
- The tenant lived in a sleep out at the back of the property and shared the downstairs bathroom with other tenants living in the main house. She says that she used as makeshift kitchen in the sleepout and was not aware that she had any right to access the kitchen in the main house.
- The tenant’s application says: This property is shockingly inadequate in terms of health and safety, yet the owner avoids responsibility by using flat-mate agreements instead of proper tenancy contracts. I've repeatedly asked for basic improvements, but nothing has been done, aside from a slightly improved internet connection, which only happened after persistent requests. The living conditions here are unacceptable. The electricity is substandard; fuses frequently blow when using multiple devices simultaneously in the sleepout, and in the bathroom, the dryer and washing machine can't be used at the same time. There's no heating in the bathroom or bedroom, no ventilation (such as extraction fans), and no insulation. The gaps between windows are so large that there's a constant draft. The long walkway (about 100m) to the sleepout is poorly lit, with no lighting at all. There are no fire alarms, insufficient parking, muddy walkways, and the bathroom ceiling is so low that I almost touch it while showering (with just 2 cm of clearance).
- Today, at the hearing the tenant submitted an affidavit detailing her experiences, which I have read. The Tribunal photocopied the affidavit so that Mr Ryu could be given a copy. Legal principles
- Under section 45 of the RTA, the landlord must provide and maintain the premises in a reasonable state of repair and comply with all requirements in respect under the Residential Tenancies (Healthy Homes Standards) 2019 (HHS), smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- The Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 require landlords to have qualifying smoke alarms. Smoke alarms must be installed in every sleeping space, or within 3 metres of the entrance to the sleeping space, and in each level of a multi-level dwelling.
- The HHS require landlords to ensure premises are draught free and properly ventilated. The ventilation standard requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. Discussion
- The Tribunal had directed Mr Ryu to obtain a HHS report from a reputable mainstream provider and carry out any work necessary to ensure the property complies with Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS) no later than 30 November 2024. 3
- Mr Ryu did provide a report, but it is from one of his contractors that provides landscaping, mowing, and general maintenance. The report is not independent, is not as detailed as would be expected from a mainstream healthy homes standards assessor, and does not address the issue of smoke alarms, insulation in the sleepout, or extractor fan in the downstairs bathroom.
- Ms Mutte says the downstairs bathroom did not have a working extractor fan during her tenancy. The only photographs available confirm that. Mr Ryu pointed to a small dark object by the door, but it does not appear to be a qualifying extractor fan and even if it were, I prefer Ms Mutte’s evidence that it did not work. 3 The Tribunal’s decision dated 9 October 2024.
- Ms Mutte showed a video from her phone which showed there was no smoke alarm in the sleepout. Ms Ryu said he was perplexed. He suggested Ms Mutte must have removed the smoke alarm when she took the video. I find that implausible. I find it proven of the balance of probabilities that the sleepout did not have a smoke alarm.
- I do not find it proved that the premises was uncompliant for insulation and draught stopping. It would have been helpful to have a professional report about those.
- Ms Mutte submitted that the garden path and parking area were not maintained in a reasonable state of repair due to them being extremely muddy and inadequately paved. She also maintained the wiring was below a reasonable standard. I was not provided with sufficient evidence such as evidence from a qualified contractor to feel comfortable making findings about these matters.
- I am satisfied that the premises did not comply with s 45 in respect to ventilation and smoke alarms, however.
- During the hearing, it also came to light that Mr Ryu has set up security cameras in the living room of the main house which he monitors. That is an outrageous interference of the tenants’ rights to reasonable peace, comfort, or privacy of the tenant in their use of the premises under s 38(2) of the RTA, and a serious interference with privacy under the Privacy Act 2020.
- Further, I note the Flatmate/House sharing agreement disallows the tenant to have guests staying after 11:00pm at night – an outrageous breach of the tenant’s right to quiet enjoyment of the premises under s 38(1).
- As mentioned in respect to the discussion on jurisdiction, Mr Ryu professed his belief that the RTA did not apply because it was a flatting arrangement. In that regard, Ms Mutte says Mr Ryu’s reliance on “flatmate agreements” is a ruse to avoid the RTA: “[Mr Ryu] avoids responsibility by using flat-mate agreements instead of proper tenancy contracts”.
- I am not going to make a finding about that. I will say, however, that Mr Ryu must immediately comply with the RTA and the Tribunal will make a direction he must enter into proper tenancy agreements with his other tenants at the premises address.
- If Mr Ryu comes before the Tribunal protesting naivete about his obligations as a landlord, he will be given short shrift. Conclusion
- This whole tenancy was fundamentally flawed. It was doomed to be so because Mr Ryu eschewed the RTA.
- The tenant suffered significant loss of amenity in the premises due to the lack of ventilation, the lack of a fire alarm, the denial of fundamental quiet enjoyment rights, and interference with her reasonable peace, comfort, and privacy.
- I had been minded to ordering compensation of $2,000.00 to Ms Mutte. Upon further reflection, an order for refund of one-third of the rent is more apposite. The figure is That reflects that the rent was relatively modest but also vindicates the substantial breaches of the tenant’s tenancy rights. Filing fee
- Mr Ryu must reimburse Ms Mutte for the filing fee.