What was the outcome of Tenancy Tribunal case 5051217?

The tribunal order states: This order amends the order dated 22 July 2025 by removing the name of the

How much money was awarded in case 5051217?

Compensation: Unlawful residential p…: $3,642.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5051217?

The dispute type was not classified.

Where can I read the official tribunal order for case 5051217?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12181250-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5051217?

The tribunal order states: This order amends the order dated 22 July 2025 by removing the name of the

How much money was awarded in case 5051217?

Compensation: Unlawful residential p…: $3,642.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5051217?

The dispute type was not classified.

Where can I read the official tribunal order for case 5051217?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12181250-Tribunal_Order.pdf.

63 Onehunga Mall, Onehunga, Auckland 1061 Tenancy Tribunal Case 5051217 — Tenancy dispute

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Order

Claims and awards in Tenancy Tribunal application 5051217 — net $3,669.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful residential premises	$3,642.00	Unlawful residential premises
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$3,669.00
Total payable by Landlord to Tenant	$3,669.00

This order amends the order dated 22 July 2025 by removing the name of the landlord’s partner, who was his representative and not a party to the proceedings.

The Tribunal declares that the premises are unlawful residential premises. Section 78A Residential Tenancies Act 1986 (“RTA”).

David Harding must pay Peter Field $3,669.00 immediately, calculated as shown in the table below:

All remaining claims are dismissed.

Reasons

Both parties attended the hearing.

On 28 March 2025 an order was made by the Tribunal declaring that the tenancy between the parties was a residential tenancy subject to the provisions of the Residential Tenancies Act 1986.

The hearing allocated for 16 July 2025 was to consider the substantive applications filed by the parties.

The tenant applied for compensation and exemplary damages.

The landlord applied for rent arrears, compensation, and breach of quiet enjoyment. Background

The tenancy premises are located on the mezzanine floor above the landlord’s commercial warehouse. The upstairs area comprises of two bedrooms together with a kitchen, lounge and dining room area and a bathroom. Tenant application

The tenant seeks an order that the premises was an unlawful residential premises.

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.

In his application the tenant states that he was given six weeks’ notice to vacate the premises because Auckland Council had issued a Cease and Desist order on the flat. The tenant’s application states that the Council sent an inspector and the landlord had asked the tenant to tell the Council that the flat was an office.

The tenant referred to an email from Prem Kerai, Compliance Officer for Auckland Council dated 27 June 2024. That email was addressed to the tenant and advised that the concerns raised by him regarding the premises had been resolved. It states that a notice had been issued to the property owner in relation to a breach and requiring them to resolve it within a reasonable time. The email advised that the space upstairs is “not rented out to anyone and is now vacant”.

The tenant referred to issues with the premises including a leaking roof. He said that he paid approximately $160,000.00 in rent from August 2012 until June 2024 and most of that was paid in cash.

The landlord submitted that the flat was never considered illegal. At the hearing the landlord said that it was common for people to live in factories, and he had lived in factories that he had leased since the 1970s. He said that councils do nothing about this unless there is a complaint.

The landlord submitted an email from the Auckland Council compliance officer which stated that there was no evidence of anyone living upstairs and therefore the Change of Use breach was resolved and the case would be closed on the understanding that the use of the property will continue to comply with its consented use. Since the tenancy ended the premises are no longer occupied for residential purposes.

In considering the evidence from Auckland Council I am satisfied that the premises were being used for residential purposes without the consent of Auckland Council.

Section 114 and 115 of the Building Act 2004 provide that an owner must give notice to Council when the owner changes the use of a building, and that an owner cannot change the use of the building unless the territorial authority has given consent.

A change from the building being used as a commercial premises to being for residential use should have been notified to Council and an owner cannot change the use of the building unless the territorial authority has given consent.

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”. The landlord’s failure to notify Council and obtain consent to change the use of the building is a breach of the Building Act and Building Code and therefore a breach of section 45 (1)(c) RTA. I am satisfied that as the landlord changed the use of the property; that the premises were unable to be lawfully occupied for residential purposes.

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 landlord benefitted financially from renting the flat over a long period of time. While the landlord’s records do not clearly record how much rent was paid it was acknowledged that the tenant paid $36,420.00 between 28 February 2022 and 6 June 2024. The landlord had submitted that the tenant failed to pay rent for a ten-year period, but is now seeking rent arrears for that period, which if granted would be a substantial financial benefit.

The tenant benefitted from living in premises for a long period of time and he seemed to be happy with the premises and the amount of rent he was paying. There is no evidence that the tenant had complained about the premises during the approximately 12 years that he lived there, other than in relation to the roof leak. It seems that the rent increase toward the end of the tenancy was the main reason for the tenant to look for alternate accommodation.

After taking account of the factors listed above, I consider that the tenant should be awarded a rent refund of 10% of the rent paid between February 2022 and June 2024 amounting to $3,642.00.

Neither party provided evidence of the rent that was paid prior to February 2022. The tenant said that he paid the rent in cash to both the landlord and his employee, but no receipts were requested by the tenant or provided by the landlord.

At one stage during the hearing the landlord said that the tenant paid money to Janet (his ex-partner) instead of him but was not aware that he was paying on a regular basis. The landlord also claimed that the tenant did not pay rent for a long period of time, although it is hard to accept that a landlord would take no action to recover rent not paid over a ten-year period. I think it more likely that the tenant paid the landlord’s employee who was also an ex-partner and following the end of that relationship this issue was in dispute. However, without evidence it is not possible to determine how much rent was paid prior to 2022.

The tenant applied for exemplary damages pursuant to section 29 of the Residential Tenancies Act 1986 which requires a landlord to provide a receipt for payments made by cash. Since February 2022 the tenant’s payments were directly into the landlord’s bank account and therefore receipts are not required 1 .

Pursuant to section 29(5) of the Residential Tenancies Act 1986 the failure to give a receipt in accordance with section 29 is declared an unlawful act. If accepted, the unlawful act would have taken place between the start of the tenancy up until February 2022. The most recent unlawful act is more than two years prior to the tenant’s application.

Section 109(2)(b) of the Residential Tenancies Act 1986 states that a landlord or a tenant may not apply under subsection (1) 12 months after the date of the commission of the unlawful act. As the application was made more than 12 months after February 2022, the Tribunal cannot make an award of exemplary damages and therefore the claim is dismissed. 1 Section 29(4)(a) Residential Tenancies Act 1986

The tenant applied for exemplary damages in relation to a breach of quiet enjoyment. The tenant referred to the landlord coming into the premises without any warning. He said that the landlord helped himself to the tenant’s food. The tenant was unable to provide any specific dates for when this occurred.

At the hearing the landlord denied eating food from the tenant’s fridge.

There is a lack of evidence to support exemplary damages for breach of quiet enjoyment. That claim is dismissed.

The tenant claims exemplary damages for a breach of the Healthy Homes standards. There are different compliance dates for the Healthy Homes standards depending on when the tenancy commenced. Given that this tenancy commenced either in 2010 or 2012 the compliance date would be 1 July 2025. The tenancy had ended by that date and therefore the landlord could not be in breach of the Healthy Homes standards. That claim is dismissed.

The tenant claimed compensation for the roof leaking and the landlord failing to repair it. The tenant said that there was a hole in the roof about a year into the tenancy. He said that he fixed the holes himself with roof tape. When it leaked the tenant would use buckets to catch the water. The tenant said that he raised the issue with the roof leak with the landlord and his ex-partner but was not sure when he did so. The tenant said that the landlord offered to have a plumber look at it, but it was never fixed.

For the hearing the tenant produced photographs showing holes in the ceiling both above the kitchen cabinets and in the corner of the lounge. The photographs were taken just before he moved out in June 2024. He said it had been like that for a couple of years.

In his evidence the tenant said the leaking started a year into the tenancy, so either in 2011 or 2013 and then said that the holes in the ceiling had been there for a couple of years before the end of the tenancy so would have been around 2022. That is a difference of around 9 years between when the leaking started and there were holes in the ceiling.

The landlord said that the tenant advised of the leak and that he would deal with it. The landlord said that he was not aware that the repair carried out by the tenant had not worked.

The evidence is not clear. There is also no evidence of when or if the tenant raised the problem with the landlord after he had attempted to carry out repairs. I have taken account of the condition of the premises when awarding in relation to the unlawful residential tenancy. I do not consider that a further award of compensation is warranted given the lack of evidence. That part of the tenant’s claim is dismissed. Landlord application

The landlord claims rent arrears totalling $134,920.00. The landlord said that in the beginning of the tenancy (from 2010 to 2011) the tenant paid cash, but the tenant denies that the tenancy had started in 2010.

The landlord’s evidence in relation to whether the tenant paid cash for rent from 2012 until 2022 is inconsistent. At one stage he said that the tenant made no cash payments to the landlord and the landlord was not aware of any arrangement the tenant had with the landlord’s ex-partner (Janet). The landlord said that Janet was not his agent for collecting rent money but she did administration for his business and was a trusted employee from 2014 to 2022. He said he did not know where the money went.

In a letter submitted as evidence the landlord’s ex-partner, Janet Matthew, stated that on many occasions from 2012 she saw the landlord receive cash from the tenant and other tenants. She said that six years earlier an arrangement was made for the tenant to pay cash to Janet or the landlord if he was in his office. Janet would then mark the calendar and the money would go under the mattress.

As I have determined that the premises are unlawful residential premises the Act states 2 that the Tribunal must not order the tenant to pay any rent arrears unless having regard to the special circumstances it would be unjust not to make the order. There are no special circumstances that warrant payment of any rent arrears, particularly in this situation where it is not clear how much, if any, rent arrears are owed. The landlord’s claim for rent arrears is dismissed.

The landlord claims compensation for damage to the premises following the end of the tenancy. The landlord said that the damage was caused by the tenant smoking and his pet cat.

The landlord did not provide any evidence of the condition of the premises at the beginning of the tenancy, any photographs of the damage or any invoices for repairs.

While the landlord said that the new commercial tenant has spent work on renovating the upstairs space, no detail of this was submitted.

Even if the landlord had provided sufficient evidence in relation to damage caused by the tenant, I need to take account of section 78A(3)(a)(ii) 3 . As this is an unlawful residential premises the Act states that the Tribunal must not order the tenant to pay any sum by way of damages or compensation unless having regard to the special circumstances it would be unjust not to make the order. 2 Section 78A(3)(a)(i) Residential Tenancies Act 1986 3 Residential Tenancies Act 1986

There are no special circumstances that warrant payment of compensation to the landlord. The claim for compensation is dismissed.

The landlord claims for exemplary damages due to a breach of quiet enjoyment. Section 38(1) of the Residential Tenancies Act 1986 states that “the tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord.” Quiet enjoyment is for the benefit of the tenant, not the landlord. A claim in favour of the landlord is not within the jurisdiction of the Tribunal. The landlord’s claim for exemplary damages for quiet enjoyment is dismissed.

Because Peter Field has substantially succeeded with the claim I have reimbursed the filing fee.

Order

Claims and awards in Tenancy Tribunal application 5051217 — net $3,669.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful residential premises	$3,642.00	Unlawful residential premises
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$3,669.00
Total payable by Landlord to Tenant	$3,669.00