Tenant's Claim for Unlawful Premises Dismissed, But Receives Compensation for Overpaid Bills

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[2025] NZTT 4961113, 4975334

TENANCY TRIBUNAL - Waitakere | Waitākere

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], Te Atatu South, Auckland 0610

ORDER

1. [NAME] must pay [NAME] $220.50 immediately, calculated as shown in the table below.

2. The Bond Centre is to pay the bond of $2,600.00 (5527256-005) to [NAME] immediately.

Description Landlord Tenant Compensation: Reimbursement for power $193.50 Filing fee reimbursement $27.00 Total award $220.50 Bond $2,600.00 Total payable by Landlord to Tenant $220.50

Reasons:

1. Both parties attended the hearing.

2. The tenant seeks a declaration that this was an unlawful residential tenancy and compensation as follows:

a. Reimbursement of one weeks’ rent of $650.00; and

b. Moving costs of $600.00.

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3. The tenant also claims he is owed $387.00 for outgoings he overpaid.

4. Lastly, the tenant seeks a refund of the bond and reimbursement of the filing fee.

5. The landlord previously filed a cross-application, which was dismissed by the Tribunal in an order dated 11 November 2024. A case conference was held on this date and the landlord did not attend.

6. The landlord travelled from Australia to New Zealand to attend the hearing on 10 February 2025.

7. As the applicant, the tenant must prove their case to the civil law standard of proof, on the balance of probabilities. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

8. In Kaipo v Clarke & McCarth (DC) TT233/02, the District Court held that in practical terms, the burden of proof requires the applicant to:

…[P]rovide 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.

9. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

Background

10. This tenancy began on 6 July 2024 and ended on or around 10 September 2024.

11. The tenancy address is a single dwelling divided into two separate household units – one upstairs and one downstairs. The tenant occupied the unit upstairs, which consists of three bedrooms, a kitchen, and a bathroom. The landlord occupied the unit downstairs, which consists of a kitchenette, bathroom and bedrooms.

12. The parties got along well at first, but there was a dispute about the tenant’s use of the garage and whether this was included in the tenancy agreement or not. This disagreement led to a deterioration of the relationship and termination of the tenancy.

13. I deal with the tenant’s claim that this was an unlawful residential premises first, before considering the other claims raised.

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UNLAWFUL RESIDENTIAL PREMISES

14. Section 78A(2) Residential Tenancies Act 1986 (RTA) states:

For the purposes of this Act, unlawful residential premises means residential premises that are used for the occupation of a person as a place of residency 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.

15. Section 36 of the Act states that:

The landlord shall 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.

16. Section 45(1)(c) states that:

(1) The landlord shall –

…..

(c) Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;

17. The first step in determining whether premises are unlawful is there needs to be a finding that the property cannot lawfully be occupied for residential purposes. This involves making a finding that the whole property has some sort of regulatory failure which means it cannot be occupied as a residential dwelling. In other words, the unlawfulness has been more than, say, just an “outstanding permit for a bathroom.”1

18. 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.

1 [NAME] v [NAME] and another [020] NZTT 4246581, at [16].

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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, 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.

19. The tenant submits that the third category applies to the present case. The tenant claims there has been a conversion of the tenancy address into two separate household units without Council consent as to the change of use.

20. Given both limbs of section 78A(2) must be satisfied before a premises is deemed an unlawful residential premises, it is useful to consider sections 36 and 45(1)(c) when considering whether the use of the premises is unlawful. If the occupation of the premises is unlawful as a result of either section, it will be likely that the landlord’s failure to comply with those sections contributed to the unlawfulness of the occupation.

21. In this case, section 45(1)(c) RTA requires consideration of whether the landlord has complied with sections 114 and 115 of the Building Act 2004. These sections deal with the change of use of consented buildings.

22. Section 114 requires the owner to give notice of a change of use of the building and makes failure to do so an offence.

23. Section 115 provides that an owner of a building must not change the use of the building –

(a) in a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use, will comply as nearly as is reasonably practicable, with the building code in all respects; and

(b) …

24. To determine whether there has been a change in use of a building, consideration must be given to the Buildings (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005 (“the regulations”).

25. Regulation 6 states that every building or part of a building has a use as specified in the table in Schedule 2 of the regulations. The following uses in Schedule 2 are relevant for residential purposes:

SA (Sleeping Accommodation)

spaces providing transient accommodation, or

motels, hotels, hostels, boarding houses, clubs (residential), boarding

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whether limited assistance or care is provided for people

schools, dormitories, halls, wharenui

SR (Sleeping Residential)

attached and multi-unit residential dwellings, including household units attached to spaces or dwellings with the same or other uses, such as caretakers’ flats, and residential accommodation above a shop

multi-unit dwellings, flats, or apartments

SH (Sleeping Single Home)

detached dwellings where people live as a single household or family, including attached self-contained spaces such as granny flats when occupied by a member of the same family, and garages (whether detached or part of the same building) if primarily for storage of the occupants’ vehicles, tools, and garden implements

dwellings or houses separated from each other by distance

26. The tenant claims that the consented use of the tenancy address is as a “SH – sleeping single home” and the landlord has changed the use to “SR – sleeping residential” by incorporating two separate household units within the same building. The tenant claims the landlord has not obtained Council consent for the change of use.

27. The evidence relied on by the tenant to prove their claim is as follows:

a. There is only one bin for the address;

b. There is only one letterbox for the address;

c. There is one main water and power meter for the address and check meters for the separate unit;

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d. The tenant claims they called the Council who advised them that the property is only consented for one dwelling.

28. The landlord gave evidence that the property is compliant in all respects.

29. The tenant claims that the Auckland Council advised him he was unable to access any records because he is not the registered owner of the property.

30. I consider that there may have been a misunderstanding by the tenant of the advice given by the Auckland Council, as the tenant is entitled to order a copy of the Land Information Memorandum (LIM), Property Information Memorandum (PIM) and property file for the tenancy address. These types of documents are available to the public and can be requested on the Auckland Council’s website. They usually contain important information on the consented use of the building, as well as information about consents that have been granted for building work.

31. In the absence of any documentary evidence or written communication from the Auckland Council, the tenant has not convinced me on the balance of probabilities that the landlord has changed the use of the building without consent of the Council.

32. It is not known whether only one household unit is permitted in the building; it may be that two separate household units are permitted within the same building. The onus remains with the tenant to establish those relevant facts.

33. If indeed only one household unit is permitted in the building, has there been Council consent of a change of use to two?

34. Without sufficient facts being established by the tenant, who is the applicant in this case, I have no option but to dismiss the claim.

35. The tenant’s claim that this is an unlawful residential premises is dismissed.

OUTGOINGS

36. Section 39(3) RTA states:

The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.

37. Both parties accept that the tenant paid the entirety of the one power bill issued during the tenancy, which was only 2 months long. The power bill included power used by the tenant occupying the unit upstairs and the landlord occupying the unit downstairs. The tenant submitted a copy of the power bill, which was for a total of $383.17.

38. The tenant is entitled to be reimbursed a portion of the power bill that fairly represents the landlord’s consumption of power during the tenancy. I consider it fair and reasonable that the tenant be reimbursed 50% of the total power bill paid

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by them, which is $191.58. The tenant’s claim for compensation for overpaid outgoings is granted for this amount.

BOND REFUND

39. The tenant has applied to the Tribunal for a refund of the bond. The landlord’s counterclaim was dismissed by the Tribunal on 11 November 2024. The landlord has no claim to the bond and I therefore order that it be refunded to the tenant in full.

FILING FEE

40. [NAME] has substantially succeeded with the claim I have reimbursed the filing fee.

L Ryken

12 February 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: