Tenant Awarded Compensation for Living in Unlawful Premises

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[2025] NZTT 5089748

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: Room 8, [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [NAME] $2,495.00 immediately, calculated as shown in table below:

Description Landlord Tenant Compensation: unlawful residential premises $2,468.00 Filing fee reimbursement $27.00 Total award $2,495.00 Total payable by Landlord to Tenant $2,495.00

Reasons:

1. Both parties attended the hearing.

2. The tenant, [NAME], had a tenancy of the premises commencing on 22 February 2024. Rent was agreed at $350.00 per week. The tenancy ended on 5 December 2024 and [NAME] applied for a refund of all rent paid for the tenancy on the basis that the premises was not consented to be occupied for residential purposes.

3. The premises consist of a garage which was converted to a ‘granny flat’ in or about 2023 by the landlord, [NAME]. The premises are fully self-contained with a kitchen and bathroom.

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4. In support of her claim that the premises cannot lawfully be occupied as a residential dwelling, [NAME] provided correspondence from the Christchurch City Council. In an email dated 17 February 2025, Sarah Congdon from the Council states “there has been no approval to change this garage into a secondary unit” and “some of the works involved like insulation, installation of plumbing and drainage would have required building consent”.

5. There was no dispute that the change in the premises from garage to a dwelling did not have change of use approval/consent or building consent for the plumbing work (associated with the bathroom and kitchen facilities), and the insulation installation. [NAME] claims that it did not require change of use consent because it is a small (32m2)) standalone building. However, the change in law that allows small standalone dwellings up to 70m2 is not expected to be in force until early 2026.

6. The premises could therefore not be lawfully occupied as a residential dwelling without the required building and change of use consents: section 77A(2) of the Residential Tenancies Act 1986 (the Act). Failure to obtain the necessary consents is a breach of section 36 of the Act which provides that the landlord must 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.

Is [NAME] entitled to a refund of all rent paid for the tenancy?

7. Where the Tribunal finds the residential premises to be unlawful, 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: sections 78A(3)(a), (4) and (5) of the Act.

8. In the circumstances here I consider it fair that [NAME] pays some rent for the premises. She had use of it for almost 10 months and she did not dispute that the premises were warm and dry. She said that the effect the lack of consent for the premises was that the shower tray was not level and water would drain very slowly from the shower. She said that sometimes the water would build up in the shower tray and seep out onto the floor. She also said that there was an issue with the skylight leaking and a window seal, but [NAME] did attend to those matters.

9. [NAME] also said that she felt uncomfortable when she found out that no consents were obtained for the garage conversion, and she was living in an unlawful dwelling. She said that moved out of the premises within weeks of finding out about it being unlawful.

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10. Taking into account all the circumstances, I consider the sum of $2,468.00, calculated at $60.00 per week for the 41 weeks of the tenancy, reasonable to compensate [NAME] for the premises being unlawful residential premises.

11. [NAME] has been successful in her claim, and I consider this an appropriate case to award her payment of the Tribunal application fee.

R Merrett

03 June 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: