Tenantcheck Insights · Case study

Tenancy Tribunal case 5418630 — Healthy homes at 15 Agnew Street, North Dunedin, Dunedin 9016

Published 19 February 2026 · Application 5418630

Landlord favoured

Healthy homes
Exemplary damages
Boarding House

View official order on MoJ →Explore similar cases

At a glance

Key facts from the published tribunal order.

Outcome

Landlord favoured

From published order

Location

Dunedin

Tribunal region

Adjudicator

J Wilson

Claims & awards

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

No individual claim amounts were reconciled for this order. View the official Ministry of Justice PDF for full detail.

Order

The application for compensation is dismissed.

Reasons

Both parties attended the hearing, the tenant by telephone.
On 19/12/2025 the tenant, on behalf of himself and three other tenants, filed an application for compensation of $12,555.00 because they had to move from the premises due to the Dunedin City Council (DCC) issuing a dangerous building notice.
At the hearing the tenant wished to amend the application to include a claim that the premises were unlawful residential premises.
The tenancy was for a fixed term from 1/1/2025 to 31/12/2025 at $540.00 rent per week. Standard of proof
This is a civil jurisdiction which means when looking at the claims the standard of proof is on the balance of probabilities. Put simply this means the tenant must establish, with evidence, that their claim is more likely than not.
The Tribunal does not need to be completely certain. All evidence presented is considered and weighed to decide what is more likely.
Where there are serious allegations, or important issues at stake as is the case here, the Tribunal needs a level of supporting evidence benefitting the matters to be decided.
Although I have not referred to all the evidence presented at the hearings the parties can be assured that it has been considered. For the purposes of conciseness only the most relevant or important evidence has been referred to.
The onus is on the applicant, in this case the tenant, to provide the necessary evidence to support their claim. If they fail to do so then the application will be dismissed, whether it has merit or not.

Did the landlord fail to comply with their obligations?

The tenant submitted that after the DCC and MBIE inspected the premises on 8/8/2025 the former issued a dangerous building notice restricting access to the premises due to issues with access stairs and an unsafe upstairs bedroom.
As a result, the tenant had to immediately vacate the premises.
Further the tenant suggested that based on a Healthy Homes Compliance report dated 13/6/2025 provided by the landlord the premises were not healthy homes compliant.
In response, the landlord submitted that the DCC subsequently amended the dangerous building notice to only limiting access to the stairs and upstairs bedroom.
The landlord confirmed that the tenant had immediately been accommodated in a boarding house for one night, received a deduction of rent for a week and been relocated to another more expensive property but at the same rental for the balance of the term of their tenancy.
The landlord submitted that the premises were constructed around 1907 and purchased by the owner in 2003. They provided a copy of a report from a building surveyor dated 20/3/2003 about an unpermitted timber deck at the rear of the property and a response from the then DCC Chief Building Control Officer confirming that the building was not dangerous or insanitary under section 64 of the Building Act 1991.
Further the landlord provided a Project Information Memorandum dated 20/11/1995 for alteration of the dwelling and a Code Compliance Certificate dated 5/11/2002 for alterations.
At the beginning of the tenancy the landlord suggested that they had relied on the Healthy Homes Compliance report dated 4/3/2020 for compliance.
After receiving the Healthy Homes Compliance report of 13/6/2025 the landlord suggested the non-compliance issues for drainage, guttering and draughts had been remedied.
Under section 45, a landlord must, among other matters, comply with any relevant enactment in relation to buildings, health and safety.
Section 45(1)(bb) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. ii. All private rentals must comply by 1 July 2025.
As the tenancy began on 1/1/2025 the compliance date for HHS compliance for this tenancy would have been 1/5/2025.
I am persuaded by the evidence of the Healthy Homes Compliance report dated 4/3/2020 that the premises complied as at 1/5/2025.
The tenants were provided with the relevant information at the beginning of the tenancy and there is no evidence to support that they advised the landlord of any healthy homes issues until a dispute arose with one tenant who wished to leave who then contacted the DCC.
The fact that the later report of 13/6/2025 found non-compliance for drainage, guttering and draughts does not prove, to the necessary standard that the non- compliance existed for the whole of the term of the tenancy.
The claim for compensation fails.

Was the property an unlawful residential tenancy?

The tenant submitted that the house had been deemed a dangerous building by the DCC and they had been forced to move out before the end of the tenancy.
In support of their claim for a refund of 75% of the rent they had paid the tenant provided a copy of the DCC building inspectors investigation report dated 11/8/2025.
The issues identified by the report were: a. Deflection in the floor/ceiling joists was clearly visible from the lounge, indicating the joists were undersized and not fit for purpose, b. The stairs accessing the bedroom were constructed in a manner that didn’t meet the New Zealand Building Code and would never have met past legislation or building code requirements, c. The steepness of the stairs was higher than allowable, d. The stair tread was too narrow, e. The width of the stairwell was less than handrail width, f. The stairs lacked slip resistance, g. There was no protection from falling at the top of the stairs. Law
There is extensive jurisprudence as to what constitutes an unlawful residential premise.
Section 77(2)(ac) 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)
Under section 78A(2) “unlawful residential premises” are defined as residential premises that are used for occupation for a person for 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)... has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Under section 36 a landlord must take all reasonable steps to ensure at the beginning of the tenancy there is no legal impediment to occupation of the premises by the tenant.
Section 45(1)(c) provides, among other matters, that a landlord must comply with all requirements in respect of buildings, health, and safety under any enactment applying 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.
The definition of premises includes, among other things, any part of any premises. Discussion
When considering unlawful residential premises, the question is whether the premises can be lawfully occupied either generally or for a particular residential purpose for which the tenant occupied it.
In addition, the Tribunal must look at whether the landlord failed to comply with sections 36 or 45(1)(c) which caused or contributed to the unlawfulness of occupation.
Section 40 of the Building Act 2004 provides that a household unit, being a building intended for residential occupation, must have a building consent and be certified as being compliant by having a code compliance certificate.
In cases where the Local Authority has advised that the whole premises, not just part, had not been consented for residential purposes the Tribunal has found the premises were unlawful residential tenancies. These premises, such as converted garages or sleepouts were self-contained and exclusively the subject of a tenancy agreement and were unlawful residential premises.
However, this is not the case here where the tenants rented a lawful residential premise where work had been undertaken at an unknown time affecting the safety of the building and its occupants.
Put another way the work on the stairs and upstairs bedroom without an appropriate consent does not make the whole premise an unlawful residential premise, but rather a lawful residential premise, with an attempted unlawful conversion.
The public policy behind section 78A was 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.
It was 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. Is compensation available for breaches of the landlord’s obligations and loss of amenity?
Section 36 requires a landlord to take all reasonable steps to ensure, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
The evidence supports that in 2003 when the owner purchased the property, they were aware that the deck had no building permit, but this did not mean the building was dangerous or insanitary in terms of the Building Act 1991.
It was only when the DCC inspected the premises in August 2025 that the owner and landlord became aware of the issue with the stairs and upstairs bedroom and took immediate steps to remedy the situation.
Further the landlord took streps to mitigate the loss of the tenant by finding alternative accommodation which did not cost them any more than they were already paying and allowed them one weeks reduction in rent, to cover costs.
There is no evidence about when the work on the stairs and upstairs bedroom was undertaken or by whom.
Taking all the circumstances into account I consider the lack of consent was not a lawful impediment to the tenant occupying the premises from the beginning of the tenancy or a failure to comply with section 45(1)(c).
The claim for compensation by way of a rent refund fails.
No filing fee is awarded because the tenant has been unsuccessful with their claim.
Suppression is not available to the tenant under section 95A because they did not succeed with the proceedings.

Topics & place

Topics are dispute themes across the order (not the same as claim-type money lines).

Healthy homes Exemplary damages Boarding House Dunedin

Residential Tenancies Act sections

s2, s36, s40, s45, s45(1), s45(1A), s64, s77(2), s78A, s78A(2), s95A

Key findings

Dispute theme: healthy homes
Dispute theme: exemplary damages
Dispute theme: boarding house

Property management

EDINBURGH REALTY LIMITED (respondent)

Frequently asked questions

Common questions about this Tenancy Tribunal case.

What was the outcome of Tenancy Tribunal case 5418630?

The tribunal order states: The application for compensation is dismissed.

How much money was awarded in case 5418630?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5418630?

The primary dispute was Healthy homes. Related themes: Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 5418630?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13145690-Tenancy_Tribunal_Order.pdf.

Reasons

Both parties attended the hearing, the tenant by telephone.

On 19/12/2025 the tenant, on behalf of himself and three other tenants, filed an application for compensation of $12,555.00 because they had to move from the premises due to the Dunedin City Council (DCC) issuing a dangerous building notice.

At the hearing the tenant wished to amend the application to include a claim that the premises were unlawful residential premises.

The tenancy was for a fixed term from 1/1/2025 to 31/12/2025 at $540.00 rent per week. Standard of proof

This is a civil jurisdiction which means when looking at the claims the standard of proof is on the balance of probabilities. Put simply this means the tenant must establish, with evidence, that their claim is more likely than not.

The Tribunal does not need to be completely certain. All evidence presented is considered and weighed to decide what is more likely.

Where there are serious allegations, or important issues at stake as is the case here, the Tribunal needs a level of supporting evidence benefitting the matters to be decided.

Although I have not referred to all the evidence presented at the hearings the parties can be assured that it has been considered. For the purposes of conciseness only the most relevant or important evidence has been referred to.

The onus is on the applicant, in this case the tenant, to provide the necessary evidence to support their claim. If they fail to do so then the application will be dismissed, whether it has merit or not.

Did the landlord fail to comply with their obligations?

The tenant submitted that after the DCC and MBIE inspected the premises on 8/8/2025 the former issued a dangerous building notice restricting access to the premises due to issues with access stairs and an unsafe upstairs bedroom.

As a result, the tenant had to immediately vacate the premises.

Further the tenant suggested that based on a Healthy Homes Compliance report dated 13/6/2025 provided by the landlord the premises were not healthy homes compliant.

In response, the landlord submitted that the DCC subsequently amended the dangerous building notice to only limiting access to the stairs and upstairs bedroom.

The landlord confirmed that the tenant had immediately been accommodated in a boarding house for one night, received a deduction of rent for a week and been relocated to another more expensive property but at the same rental for the balance of the term of their tenancy.

The landlord submitted that the premises were constructed around 1907 and purchased by the owner in 2003. They provided a copy of a report from a building surveyor dated 20/3/2003 about an unpermitted timber deck at the rear of the property and a response from the then DCC Chief Building Control Officer confirming that the building was not dangerous or insanitary under section 64 of the Building Act 1991.

Further the landlord provided a Project Information Memorandum dated 20/11/1995 for alteration of the dwelling and a Code Compliance Certificate dated 5/11/2002 for alterations.

At the beginning of the tenancy the landlord suggested that they had relied on the Healthy Homes Compliance report dated 4/3/2020 for compliance.

After receiving the Healthy Homes Compliance report of 13/6/2025 the landlord suggested the non-compliance issues for drainage, guttering and draughts had been remedied.

Under section 45, a landlord must, among other matters, comply with any relevant enactment in relation to buildings, health and safety.

Section 45(1)(bb) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. ii. All private rentals must comply by 1 July 2025.

As the tenancy began on 1/1/2025 the compliance date for HHS compliance for this tenancy would have been 1/5/2025.

I am persuaded by the evidence of the Healthy Homes Compliance report dated 4/3/2020 that the premises complied as at 1/5/2025.

The tenants were provided with the relevant information at the beginning of the tenancy and there is no evidence to support that they advised the landlord of any healthy homes issues until a dispute arose with one tenant who wished to leave who then contacted the DCC.

The fact that the later report of 13/6/2025 found non-compliance for drainage, guttering and draughts does not prove, to the necessary standard that the non- compliance existed for the whole of the term of the tenancy.

The claim for compensation fails.

Was the property an unlawful residential tenancy?

The tenant submitted that the house had been deemed a dangerous building by the DCC and they had been forced to move out before the end of the tenancy.

In support of their claim for a refund of 75% of the rent they had paid the tenant provided a copy of the DCC building inspectors investigation report dated 11/8/2025.

The issues identified by the report were: a. Deflection in the floor/ceiling joists was clearly visible from the lounge, indicating the joists were undersized and not fit for purpose, b. The stairs accessing the bedroom were constructed in a manner that didn’t meet the New Zealand Building Code and would never have met past legislation or building code requirements, c. The steepness of the stairs was higher than allowable, d. The stair tread was too narrow, e. The width of the stairwell was less than handrail width, f. The stairs lacked slip resistance, g. There was no protection from falling at the top of the stairs. Law

There is extensive jurisprudence as to what constitutes an unlawful residential premise.

Section 77(2)(ac) 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)

Under section 78A(2) “unlawful residential premises” are defined as residential premises that are used for occupation for a person for 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)... has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.

Under section 36 a landlord must take all reasonable steps to ensure at the beginning of the tenancy there is no legal impediment to occupation of the premises by the tenant.

Section 45(1)(c) provides, among other matters, that a landlord must comply with all requirements in respect of buildings, health, and safety under any enactment applying 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.

The definition of premises includes, among other things, any part of any premises. Discussion

When considering unlawful residential premises, the question is whether the premises can be lawfully occupied either generally or for a particular residential purpose for which the tenant occupied it.

In addition, the Tribunal must look at whether the landlord failed to comply with sections 36 or 45(1)(c) which caused or contributed to the unlawfulness of occupation.

Section 40 of the Building Act 2004 provides that a household unit, being a building intended for residential occupation, must have a building consent and be certified as being compliant by having a code compliance certificate.

In cases where the Local Authority has advised that the whole premises, not just part, had not been consented for residential purposes the Tribunal has found the premises were unlawful residential tenancies. These premises, such as converted garages or sleepouts were self-contained and exclusively the subject of a tenancy agreement and were unlawful residential premises.

However, this is not the case here where the tenants rented a lawful residential premise where work had been undertaken at an unknown time affecting the safety of the building and its occupants.

Put another way the work on the stairs and upstairs bedroom without an appropriate consent does not make the whole premise an unlawful residential premise, but rather a lawful residential premise, with an attempted unlawful conversion.

The public policy behind section 78A was 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.

It was 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. Is compensation available for breaches of the landlord’s obligations and loss of amenity?

Section 36 requires a landlord to take all reasonable steps to ensure, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.

The evidence supports that in 2003 when the owner purchased the property, they were aware that the deck had no building permit, but this did not mean the building was dangerous or insanitary in terms of the Building Act 1991.

It was only when the DCC inspected the premises in August 2025 that the owner and landlord became aware of the issue with the stairs and upstairs bedroom and took immediate steps to remedy the situation.

Further the landlord took streps to mitigate the loss of the tenant by finding alternative accommodation which did not cost them any more than they were already paying and allowed them one weeks reduction in rent, to cover costs.

There is no evidence about when the work on the stairs and upstairs bedroom was undertaken or by whom.

Taking all the circumstances into account I consider the lack of consent was not a lawful impediment to the tenant occupying the premises from the beginning of the tenancy or a failure to comply with section 45(1)(c).

The claim for compensation by way of a rent refund fails.

No filing fee is awarded because the tenant has been unsuccessful with their claim.

Suppression is not available to the tenant under section 95A because they did not succeed with the proceedings.