What was the outcome of Tenancy Tribunal case 5153273?

The tribunal order states: The tenants claim in respect of the premises being an unlawful residential

How much money was awarded in case 5153273?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5153273?

The primary dispute was Rent arrears. Related themes: Smoke alarms, Healthy homes, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 5153273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12006786-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5153273?

The tribunal order states: The tenants claim in respect of the premises being an unlawful residential

How much money was awarded in case 5153273?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5153273?

The primary dispute was Rent arrears. Related themes: Smoke alarms, Healthy homes, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 5153273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12006786-Tribunal_Order.pdf.

12B Peri Street, Gate Pa, Tauranga 3112 Tenancy Tribunal Case 5153273 — Rent arrears

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

12B Peri Street, Gate Pa, Tauranga 3112 Tenancy Tribunal Case 5153273 — Rent arrears | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5153273. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

The tenants claim in respect of the premises being an unlawful residential premises is dismissed.
The landlord must carry out the following work to the premises, which must be completed by 30 September 2025: a. the landlord is to arrange a suitably qualified builder to install openable windows in all habitable rooms and provide confirmation to the tenant that the premises is compliant with the ventilation standard, by way of an HHS compliance statement.
The landlord must carry out the following work to the premises, which must be completed by 31 July 2025: a. the landlord is to arrange a suitably qualified builder to remove any unreasonable gaps or holes in the windows and doors which cause noticeable draughts and provide confirmation to the tenant that the premises is compliant with the draught stopping standard, by way of an HHS compliance statement.
Clayton Senior-Partridge must pay Sierra Sapphire Laurent $27 immediately being reimbursement of the filing fee for application 5240232.

Reasons

Both parties attended the remote hearing.
The tenant claims: a. the premises is an unlawful residential premises and seeks a refund of rent paid (application 5153273). b. that the premises does not comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“HHS”) in relation to draught stopping and ventilation. The tenant seeks compliance with the HHS (application 5240232).
The procedural background is: a. On 26 February 2025 the Tribunal made an order declaring the termination notice served by the landlord on the tenant on 31 January 2025 retaliatory and of no effect, an order for exemplary damages, a work order and dismissing the balance of the parties claims. b. The hearing was adjourned to 8 April 2025 in respect of the tenants claim that the premises was an unlawful residential premises. c. On 12 April 2025 I directed the filing of further evidence and adjourned the matter. The final hearing of this matter was on 16 June 2025.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

UNLAWFUL RESIDENTIAL PREMISES

Section 77(2) (ac) of the RTA sets out that the Tribunal has jurisdiction to determine whether any premises are, or were at any material time, unlawful residential tenancies as defined in section 78A(2) of the RTA. Section 78A (2) of the RTA states: 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.
Section 36 of the RTA states that the landlord should 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.
Section 45 (1)(c) of the RTA provides a landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Residential premises are defined in section 2 as any premises used or intended for occupation by any person as a place of residence, whether or not that occupation or intended occupation for residential purposes is or would be unlawful.
This is therefore a two-step process to decide if premises are unlawful. Step one is to decide if the premises cannot be lawfully occupied for residential purposes. This first step involves making a finding that the whole of the property has some sort of regulatory failure which means it cannot be occupied as a residential dwelling. The unlawfulness must be more than, say, just an outstanding permit for a bathroom. 1 Step two is to decide if the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA.
The Tribunal is obliged to take a strict approach in such situations, because of the serious risk involved. The public policy behind section 78A is to discourage landlords from renting out properties that were unconsented or unlawful and had therefore never been subject to meeting the legal requirements to ensure their safe and healthy occupation by tenants. In tenanting a property that cannot be lawfully occupied for residential purposes a landlord is not only profiting from illegal conduct but is potentially placing a tenant’s health and safety at risk. If there is a fire, for instance, in an unlawful residential premises, the consequences not just for the tenant but also for the landlord, are serious, including loss of life. That kind of scenario indicates how seriously the Tribunal must approach these situations and is no doubt why Parliament has set severe sanctions in the RTA for renting out premises that are unlawful. 2
Prior cases where the Tribunal has found premises to be unlawful appear to fall broadly into one or more of the following categories: (a)Unconsented premises. In other words, premises where there has been no building consent or resource consent for the premises at all. (b)Premises where an abatement notice or dangerous and insanitary building notice has been issued by the Council. (c)Cases where garages, basement conversions or parts of premises being used as a larger household unit have been converted for residential use and then rented out as a separate household unit, 1 See Mansfield v Silk and another [2020] NZ TT 4246581, at [16]. 2 Noted in North v Hunt [2021] NZTT 429579, at [30] and [31] without Council consent as to the change of use. The premises themselves may have had the necessary building consents but there is no Council approval for the use of the premises as a separate household unit.
Section s 78A is not aimed at a regulatory failure of a premise that is otherwise a lawful residential premise. However, this does not mean a landlord can escape liability for renting unconsented premises. Rather this failure is covered by sections 45 and 36.
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. 3
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. 4
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. 5
The Tribunal may make any of these orders, including an order for exemplary damages, on its own initiative, even if the tenant has not applied for a particular order. 6 Tenant’s position
The tenancy commenced on 1 March 2024. Rent is $450 per week and the tenant has consistently paid rent since the commencement of the tenancy.
Prior to the tenancy commencing the tenant resided in the upstairs premises with the landlord. The premises is the bottom floor of a two-level home. The landlord lives on the top floor. The lower floor, where the tenant resides, is a basement with two bedrooms, a kitchen and bathroom. I understand the bedrooms are set back into the hillside. The tenant says the premises is cold and damp. 3 See section 78 A (3) 4 See section 78 A (4) (a) of the RTA. 5 See section 78A (4) (b) of the RTA. 6 See section 78 (5) of the RTA.
The tenant’s basis for saying the premises is unlawful is that she says there is no consent for the kitchen. The tenant is concerned that if the premises is unlawful that the landlord will end her tenancy at short notice and that the premises might not be safe.
The tenant has provided a short email from the Tauranga City Council Building Compliance Officer. The email says that the only building permit for 12 Peri St was for a shower and toilet being installed in the basement in 1980. The premises has a kitchen that the tenant says may not be permitted. Landlord’s position
The landlord disputes that the premises are unlawful and opposes an order being made for the tenant to be repaid her rent.
The landlord said the property was built in the 1950’s and the kitchen was built in 1988, therefore prior to the current Building Act 2004. The landlord says he purchased the home in May 2021 and has not undertaken any building work himself which would require consent.
The landlord said when he purchased the premises the previous tenant had been residing in the tenant’s premises for a number of years and their tenancy ended in late 2023.
The landlord said at the commencement of this tenancy he provided the premises to the tenant with new carpet, painted walls, a heat pump and some other renovations. He says the tenant had viewed the premises prior to moving in and was familiar with the nature of the premises.
At the first hearing the landlord did not provide any documentary evidence, such as Council reports, a LIM or correspondence with the Council. Following the last hearing I directed the parties to file further evidence. I directed the tenant to obtain a copy of the full Council file relating to the premises. The tenant did not obtain the file or provide any further evidence in support of the claim.
The landlord provided written submissions in response to the claim. The landlord says that he has had difficulty addressing the tenant’s claims given she has been unclear as to the basis for her claim. The landlord says: a. Information from Land Information New Zealand and the Council file suggests the property was built in 1951. b. Prior to the Building Act 1991, building consents were not required. c. A building permit may have been required when the house was built in 1951 but it is not clear whether further building permits were required for any alterations. d. Where no consent is applicable, the Tauranga City Council require a property owner to acquire a Third Party report by a building specialist to provide confirmation that the building is compliant and safe.
The landlord says he obtained the Third party report in respect of the downstairs alterations and he says this Third party report shows the kitchen alterations sufficiently meet the Councils requirements.
The landlord says no evidence has been provided that suggests a building permit or building consent was required for the kitchen when it was built and the tenant has not proved that the property cannot be lawfully occupied for lack of any consents.
The landlord’s written submissions refer to the Council file, which neither the tenant nor the landlord provided.
In this case, the tenant must prove on the balance of probabilities that it is more probable than not that the premises is unlawful. The tenant has not proved that the premises falls into any of the unlawful residential premises categories outlined above.
I am not satisfied on the evidence provided by the tenant that the premises cannot lawfully be occupied for residential purposes. The tenant’s email from the Council is insufficient evidence that this premises cannot lawfully be occupied for residential purposes.
Accordingly, the tenants claim in respect of the premises being unlawful is dismissed.

HEALTHY HOMES STANDARDS

The tenant claims that the landlord has breached his obligations as it relates to the HHS. The RTA requires compliance with the HHS. 7 The HHS provides for 7 See Section 45(1)(bb) of the RTA a minimum set of requirements for residential tenancies as it relates to heating, insulation, ventilation, draught stopping, and moisture ingress and drainage. Compliance dates for the HHS vary depending on the tenancy: All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
As this tenancy commenced on 1 March 2024 the compliance date for this tenancy was 29 May 2024.
Section 13A (1CA) of the RTA, which relates to what must be included in a tenancy agreement, states: The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b)including the information (if any) prescribed by regulations under section 138B(5). (I will refer to this as the “HHS compliance statement”)
As I understand it, the landlord has not provided a HHS compliance statement to the tenant or the Tribunal. There is, as far as I am aware, no HHS compliance statement in relation to this tenancy. The tenant makes no claim in respect of this issue, however, the tenant is concerned that the home is not HHS compliant. The tenant refers to having a healthy homes report completed, however the report she has provided in evidence was completed by a Te Whatu Ora Healthy homes Program Assessor / Coordinator and is effectively a letter that does not address all aspects of the HHS and the premises level of compliance with the HHS.
The tenant seeks compliance with the HHS.
Where the Tribunal finds the landlord has failed to comply with any of its obligations under s 45 RTA, it may make an order for the landlord to carry out the work to obtain compliance. 8 8 See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. 9
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. 10 Ventilation standard
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. The HHS does provide exemptions in specific circumstances.
Regulation 22 of the HHS sets out the following exemption. A habitable space need not comply with regulation 21 if,— (a)when the habitable space was built or converted into a habitable space, not having qualifying windows or doors that would comply with regulation 21 was lawful; and (b)if not having qualifying windows or doors was lawful only because the room met alternative ventilation requirements, at the commencement of the tenancy the room still meets those requirements.
The tenant says that the bedrooms do not have any windows opening to the exterior for proper ventilation to be achieved. In addition, the tenant says the extractor fan in one of the bedrooms does not work. 9 See sections 78(2) and 78(2AA) Residential Tenancies Act 1986. 10 See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
The landlord says the conversion of the downstairs level was undertaken probably in 1998. The landlord says at that time not having qualifying windows or doors would have been lawful, as there was no requirement for external ventilation.
However, the Housing Improvement Regulations 1947 (“HIR”) have been in force since 1947 and regulation 11 states: (1)Every habitable room shall be provided with 1 or more windows so situated in an external wall or external walls that adequate light is admitted. (2)The aggregate area of the glass of the windows of each habitable room shall be not less than a one-tenth part of the area of the floor of the room. (3)The windows of each habitable room shall be so constructed that windows with an area amounting to not less than one-twentieth part of the area of the floor of the room can be opened for the admission of air. (4)Every room which is not a habitable room shall be provided with such window or windows as the local authority may consider necessary for the adequate lighting and ventilation thereof.
I therefore consider the exemption set out in regulation 22 HHS does not apply to this premises as the rooms, being used as bedrooms, are habitable rooms that require windows pursuant to the HIR. I find that the premises is not compliant with the HHS ventilation standard.
I therefore make an order that the landlord is to arrange a suitably qualified builder to install openable windows in all habitable rooms and provide confirmation to the tenant that the premises is compliant with the ventilation standard, by way of a HHS compliance statement by 30 September 2025.
The reality for the landlord is that he will need to undertake proper planning and obtain any relevant building consents and instruct a Licenced Building practitioner to undertake any work necessary to meet the standard. Draught Stopping Standard
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. The HHS does provide exemptions in specific circumstances.
The tenant says the front door has a gap which is causing a draught and says the premises therefore does not meet the HHS. The tenant provided a photograph of the door frame. The gap is not particularly clear to see.
The landlord says he has had an HHS report completed and the property meets the HHS in relation to draught stopping. The landlord did not provide the report in evidence.
In the absence of a HHS compliance statement, I cannot find that the landlord is compliant with the HHS. The only order that the tenant seeks in respect of her HHS claim is compliance.
I therefore make an order that the landlord is to arrange a suitably qualified builder to remove any unreasonable gaps or holes in the windows and doors which cause noticeable draughts and provide confirmation that the premises is compliant with the draught stopping standard, by way of an HHS compliance statement by 31 July 2025. If the landlord is correct, that the premises is already compliant with the draught stopping standard, compliance can be evidence by his providing the healthy homes report he has obtained to the tenant together with an HHS compliance statement.

FILING FEE

As the tenant has been substantially successful with her HHS claim, I have reimbursed the filing fee.

SUPPRESSION

Neither party sought name suppression.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5153273. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason

Order

The tenants claim in respect of the premises being an unlawful residential premises is dismissed.
The landlord must carry out the following work to the premises, which must be completed by 30 September 2025: a. the landlord is to arrange a suitably qualified builder to install openable windows in all habitable rooms and provide confirmation to the tenant that the premises is compliant with the ventilation standard, by way of an HHS compliance statement.
The landlord must carry out the following work to the premises, which must be completed by 31 July 2025: a. the landlord is to arrange a suitably qualified builder to remove any unreasonable gaps or holes in the windows and doors which cause noticeable draughts and provide confirmation to the tenant that the premises is compliant with the draught stopping standard, by way of an HHS compliance statement.
Clayton Senior-Partridge must pay Sierra Sapphire Laurent $27 immediately being reimbursement of the filing fee for application 5240232.

Reasons

Both parties attended the remote hearing.
The tenant claims: a. the premises is an unlawful residential premises and seeks a refund of rent paid (application 5153273). b. that the premises does not comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“HHS”) in relation to draught stopping and ventilation. The tenant seeks compliance with the HHS (application 5240232).
The procedural background is: a. On 26 February 2025 the Tribunal made an order declaring the termination notice served by the landlord on the tenant on 31 January 2025 retaliatory and of no effect, an order for exemplary damages, a work order and dismissing the balance of the parties claims. b. The hearing was adjourned to 8 April 2025 in respect of the tenants claim that the premises was an unlawful residential premises. c. On 12 April 2025 I directed the filing of further evidence and adjourned the matter. The final hearing of this matter was on 16 June 2025.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

UNLAWFUL RESIDENTIAL PREMISES

Section 77(2) (ac) of the RTA sets out that the Tribunal has jurisdiction to determine whether any premises are, or were at any material time, unlawful residential tenancies as defined in section 78A(2) of the RTA. Section 78A (2) of the RTA states: 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.
Section 36 of the RTA states that the landlord should 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.
Section 45 (1)(c) of the RTA provides a landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Residential premises are defined in section 2 as any premises used or intended for occupation by any person as a place of residence, whether or not that occupation or intended occupation for residential purposes is or would be unlawful.
This is therefore a two-step process to decide if premises are unlawful. Step one is to decide if the premises cannot be lawfully occupied for residential purposes. This first step involves making a finding that the whole of the property has some sort of regulatory failure which means it cannot be occupied as a residential dwelling. The unlawfulness must be more than, say, just an outstanding permit for a bathroom. 1 Step two is to decide if the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA.
The Tribunal is obliged to take a strict approach in such situations, because of the serious risk involved. The public policy behind section 78A is to discourage landlords from renting out properties that were unconsented or unlawful and had therefore never been subject to meeting the legal requirements to ensure their safe and healthy occupation by tenants. In tenanting a property that cannot be lawfully occupied for residential purposes a landlord is not only profiting from illegal conduct but is potentially placing a tenant’s health and safety at risk. If there is a fire, for instance, in an unlawful residential premises, the consequences not just for the tenant but also for the landlord, are serious, including loss of life. That kind of scenario indicates how seriously the Tribunal must approach these situations and is no doubt why Parliament has set severe sanctions in the RTA for renting out premises that are unlawful. 2
Prior cases where the Tribunal has found premises to be unlawful appear to fall broadly into one or more of the following categories: (a)Unconsented premises. In other words, premises where there has been no building consent or resource consent for the premises at all. (b)Premises where an abatement notice or dangerous and insanitary building notice has been issued by the Council. (c)Cases where garages, basement conversions or parts of premises being used as a larger household unit have been converted for residential use and then rented out as a separate household unit, 1 See Mansfield v Silk and another [2020] NZ TT 4246581, at [16]. 2 Noted in North v Hunt [2021] NZTT 429579, at [30] and [31] without Council consent as to the change of use. The premises themselves may have had the necessary building consents but there is no Council approval for the use of the premises as a separate household unit.
Section s 78A is not aimed at a regulatory failure of a premise that is otherwise a lawful residential premise. However, this does not mean a landlord can escape liability for renting unconsented premises. Rather this failure is covered by sections 45 and 36.
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. 3
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. 4
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. 5
The Tribunal may make any of these orders, including an order for exemplary damages, on its own initiative, even if the tenant has not applied for a particular order. 6 Tenant’s position
The tenancy commenced on 1 March 2024. Rent is $450 per week and the tenant has consistently paid rent since the commencement of the tenancy.
Prior to the tenancy commencing the tenant resided in the upstairs premises with the landlord. The premises is the bottom floor of a two-level home. The landlord lives on the top floor. The lower floor, where the tenant resides, is a basement with two bedrooms, a kitchen and bathroom. I understand the bedrooms are set back into the hillside. The tenant says the premises is cold and damp. 3 See section 78 A (3) 4 See section 78 A (4) (a) of the RTA. 5 See section 78A (4) (b) of the RTA. 6 See section 78 (5) of the RTA.
The tenant’s basis for saying the premises is unlawful is that she says there is no consent for the kitchen. The tenant is concerned that if the premises is unlawful that the landlord will end her tenancy at short notice and that the premises might not be safe.
The tenant has provided a short email from the Tauranga City Council Building Compliance Officer. The email says that the only building permit for 12 Peri St was for a shower and toilet being installed in the basement in 1980. The premises has a kitchen that the tenant says may not be permitted. Landlord’s position
The landlord disputes that the premises are unlawful and opposes an order being made for the tenant to be repaid her rent.
The landlord said the property was built in the 1950’s and the kitchen was built in 1988, therefore prior to the current Building Act 2004. The landlord says he purchased the home in May 2021 and has not undertaken any building work himself which would require consent.
The landlord said when he purchased the premises the previous tenant had been residing in the tenant’s premises for a number of years and their tenancy ended in late 2023.
The landlord said at the commencement of this tenancy he provided the premises to the tenant with new carpet, painted walls, a heat pump and some other renovations. He says the tenant had viewed the premises prior to moving in and was familiar with the nature of the premises.
At the first hearing the landlord did not provide any documentary evidence, such as Council reports, a LIM or correspondence with the Council. Following the last hearing I directed the parties to file further evidence. I directed the tenant to obtain a copy of the full Council file relating to the premises. The tenant did not obtain the file or provide any further evidence in support of the claim.
The landlord provided written submissions in response to the claim. The landlord says that he has had difficulty addressing the tenant’s claims given she has been unclear as to the basis for her claim. The landlord says: a. Information from Land Information New Zealand and the Council file suggests the property was built in 1951. b. Prior to the Building Act 1991, building consents were not required. c. A building permit may have been required when the house was built in 1951 but it is not clear whether further building permits were required for any alterations. d. Where no consent is applicable, the Tauranga City Council require a property owner to acquire a Third Party report by a building specialist to provide confirmation that the building is compliant and safe.
The landlord says he obtained the Third party report in respect of the downstairs alterations and he says this Third party report shows the kitchen alterations sufficiently meet the Councils requirements.
The landlord says no evidence has been provided that suggests a building permit or building consent was required for the kitchen when it was built and the tenant has not proved that the property cannot be lawfully occupied for lack of any consents.
The landlord’s written submissions refer to the Council file, which neither the tenant nor the landlord provided.
In this case, the tenant must prove on the balance of probabilities that it is more probable than not that the premises is unlawful. The tenant has not proved that the premises falls into any of the unlawful residential premises categories outlined above.
I am not satisfied on the evidence provided by the tenant that the premises cannot lawfully be occupied for residential purposes. The tenant’s email from the Council is insufficient evidence that this premises cannot lawfully be occupied for residential purposes.
Accordingly, the tenants claim in respect of the premises being unlawful is dismissed.

HEALTHY HOMES STANDARDS

The tenant claims that the landlord has breached his obligations as it relates to the HHS. The RTA requires compliance with the HHS. 7 The HHS provides for 7 See Section 45(1)(bb) of the RTA a minimum set of requirements for residential tenancies as it relates to heating, insulation, ventilation, draught stopping, and moisture ingress and drainage. Compliance dates for the HHS vary depending on the tenancy: All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
As this tenancy commenced on 1 March 2024 the compliance date for this tenancy was 29 May 2024.
Section 13A (1CA) of the RTA, which relates to what must be included in a tenancy agreement, states: The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b)including the information (if any) prescribed by regulations under section 138B(5). (I will refer to this as the “HHS compliance statement”)
As I understand it, the landlord has not provided a HHS compliance statement to the tenant or the Tribunal. There is, as far as I am aware, no HHS compliance statement in relation to this tenancy. The tenant makes no claim in respect of this issue, however, the tenant is concerned that the home is not HHS compliant. The tenant refers to having a healthy homes report completed, however the report she has provided in evidence was completed by a Te Whatu Ora Healthy homes Program Assessor / Coordinator and is effectively a letter that does not address all aspects of the HHS and the premises level of compliance with the HHS.
The tenant seeks compliance with the HHS.
Where the Tribunal finds the landlord has failed to comply with any of its obligations under s 45 RTA, it may make an order for the landlord to carry out the work to obtain compliance. 8 8 See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. 9
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. 10 Ventilation standard
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. The HHS does provide exemptions in specific circumstances.
Regulation 22 of the HHS sets out the following exemption. A habitable space need not comply with regulation 21 if,— (a)when the habitable space was built or converted into a habitable space, not having qualifying windows or doors that would comply with regulation 21 was lawful; and (b)if not having qualifying windows or doors was lawful only because the room met alternative ventilation requirements, at the commencement of the tenancy the room still meets those requirements.
The tenant says that the bedrooms do not have any windows opening to the exterior for proper ventilation to be achieved. In addition, the tenant says the extractor fan in one of the bedrooms does not work. 9 See sections 78(2) and 78(2AA) Residential Tenancies Act 1986. 10 See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.
The landlord says the conversion of the downstairs level was undertaken probably in 1998. The landlord says at that time not having qualifying windows or doors would have been lawful, as there was no requirement for external ventilation.
However, the Housing Improvement Regulations 1947 (“HIR”) have been in force since 1947 and regulation 11 states: (1)Every habitable room shall be provided with 1 or more windows so situated in an external wall or external walls that adequate light is admitted. (2)The aggregate area of the glass of the windows of each habitable room shall be not less than a one-tenth part of the area of the floor of the room. (3)The windows of each habitable room shall be so constructed that windows with an area amounting to not less than one-twentieth part of the area of the floor of the room can be opened for the admission of air. (4)Every room which is not a habitable room shall be provided with such window or windows as the local authority may consider necessary for the adequate lighting and ventilation thereof.
I therefore consider the exemption set out in regulation 22 HHS does not apply to this premises as the rooms, being used as bedrooms, are habitable rooms that require windows pursuant to the HIR. I find that the premises is not compliant with the HHS ventilation standard.
I therefore make an order that the landlord is to arrange a suitably qualified builder to install openable windows in all habitable rooms and provide confirmation to the tenant that the premises is compliant with the ventilation standard, by way of a HHS compliance statement by 30 September 2025.
The reality for the landlord is that he will need to undertake proper planning and obtain any relevant building consents and instruct a Licenced Building practitioner to undertake any work necessary to meet the standard. Draught Stopping Standard
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. The HHS does provide exemptions in specific circumstances.
The tenant says the front door has a gap which is causing a draught and says the premises therefore does not meet the HHS. The tenant provided a photograph of the door frame. The gap is not particularly clear to see.
The landlord says he has had an HHS report completed and the property meets the HHS in relation to draught stopping. The landlord did not provide the report in evidence.
In the absence of a HHS compliance statement, I cannot find that the landlord is compliant with the HHS. The only order that the tenant seeks in respect of her HHS claim is compliance.
I therefore make an order that the landlord is to arrange a suitably qualified builder to remove any unreasonable gaps or holes in the windows and doors which cause noticeable draughts and provide confirmation that the premises is compliant with the draught stopping standard, by way of an HHS compliance statement by 31 July 2025. If the landlord is correct, that the premises is already compliant with the draught stopping standard, compliance can be evidence by his providing the healthy homes report he has obtained to the tenant together with an HHS compliance statement.

FILING FEE

As the tenant has been substantially successful with her HHS claim, I have reimbursed the filing fee.

SUPPRESSION

Neither party sought name suppression.

Tenancy Tribunal case 5153273 — Rent arrears at 12B Peri Street, Gate Pa, Tauranga 3112

At a glance

Tenancy Tribunal case 5153273 — Rent arrears at 12B Peri Street, Gate Pa, Tauranga 3112

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

UNLAWFUL RESIDENTIAL PREMISES

HEALTHY HOMES STANDARDS

FILING FEE

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

UNLAWFUL RESIDENTIAL PREMISES

HEALTHY HOMES STANDARDS

FILING FEE

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions