A Herald investigation found 14 landlords had been issued with restraining orders for repeatedly failing their obligations to tenants. Now two of them have been convicted. Photo / OneRoof
A Herald investigation found 14 landlords had been issued with restraining orders for repeatedly failing their obligations to tenants. Now two of them have been convicted. Photo / OneRoof
Two landlords have now been convicted in a criminal court for repeatedly breaking tenancy laws.
But despite facing a sanction reserved for the worst of the worst rule breakers, there is nothing to stop them from continuing as landlords.
A law change in 2010 meant landlords could beissued with a restraining order for up to six years if they repeatedly breached their obligations - such as failing to lodge bonds.
If they breached the rules again during the specified period, they could be charged with an offence rather than just being fined.
Restraining orders are rare - an investigation found they have been issued just 14 times, at a rate of around one a year. Convictions for breaching the orders are even rarer. The Herald found just two instances since the 2010 law change, both last year.
Mark David Philip, from Auckland, and Kevin Bustard, from Tauranga, were convicted following investigations by a tenancy compliance team at the Ministry of Business, Innovation and Employment (MBIE).
They were both found guilty of breaching restraining orders imposed by the Tenancy Tribunal.
Philip died in January from pancreatic cancer, according to a death notice published in the Herald.
He was earlier convicted on five charges and fined $4800. He had been restrained by the tribunal for failing to lodge bonds, non-compliant smoke alarms and failing to provide insulation statements.
During his tribunal hearings, an adjudicator said he was "patently unaware of his obligations as a landlord".
Philip made headlines at the beginning of level 4 lockdown in March 2020 when he twice tried to enter rental properties in Mt Eden which he owned but did not live in.
His shocked tenants called the police and he was arrested. He then breached lockdown again by travelling 100km to Ngatea.
Auckland landlord Mark Philip, who died in January, was one of just two people to be charged for repeatedly breaking tenancy laws. Photo / Supplied
Bustard was convicted on two counts of breaching a restraining order that required him to lodge bonds. He was fined $675.
Lawyer Jonathan Wood, who specialises in property disputes, said the restraining orders were brought in as an "extreme remedy" for landlords who were "incorrigible" and unable to fulfil their duties and obligations.
"The extreme end of this is that there will be a sanction for breaching the order of the court. That is essentially criminal contempt.
"It was really only supposed to be for those people who are so flagrantly awful that they probably shouldn't be landlords at all.
"It was envisaged that this would be a remedy that wouldn't need to be used in anything other than extreme cases."
When the law was being passed, Parliament considered but ultimately decided against a provision which would have allowed the court to ban a repeat offender from being a landlord, Wood said.
That means Smith - until his death - and Bustard were able to remain in charge of rental properties.
Authorities have also gone to some lengths to recoup costs from landlords who have repeatedly broken the rules.
Debbie Iskander, who was part of the tenancy compliance unit's largest cases was restrained for six years in 2019. She was fined $180,000 for failing to lodge bond payments in 81 cases.
As part of the civil debt process being used to recover the payments, a charging order was filed against Iskander in 2020 and a caveat was placed on her $670,000 property in Favona - preventing her from selling it.
MBIE said if the money remained unpaid, it would pursue other options including seizing the property.
However, nearly two years later, she had not paid the money and the charging order remains in place.
"MBIE is looking at taking further steps to resolve this issue," a spokeswoman said.
