At a hearing attended by both parties on February 8, claims relating to market rent, overpaid rent, and lack of rent receipts were withdrawn.
Tribunal adjudicator K. Lash suppressed the names and identifying details of both parties and noted the landlord had not been advised of many of the breaches raised.
A full rent rebate was sought by the former tenant on the basis the unit was unlawful, which he substantiated with Wellington City Council documentation indicating its bathroom didn’t have consent and rates information referencing only one residential dwelling at the address.
Evidence showing the property was marketed to the landlord as a three-bedroom home upstairs with a one-bedroom unit downstairs was also provided, Lash noted in the tribunal’s March 24 decision.
“There have therefore been renovations during [the landlord’s] tenure to create the downstairs into two units.”
Lash said the landlord submitted he hadn’t done any structural work to the house, wasn’t aware the bathroom was built without consent, and was advised by tradesmen modifications to turn a laundry into a kitchen area didn’t require consent.
“He says [he] accepts he should have checked the legal status of the property before renting out the three units but mistakenly relied on the real estate agent at purchase and the trades who did the renovations.”
After considering the evidence it was accepted by Lash the building’s use had more than likely changed from one household unit to three without council consent, and was unlikely to comply with the Building Code or Building Act.
As the landlord commissioned the unit’s construction without ensuring he had legal consent, Lash ruled he created the unlawful occupation.
While he accepted the situation resulted from a genuine, albeit negligent error, Lash noted the landlord continued to rent the unit despite knowing the concerns had been raised.
“However he has been negligent in abiding by his legal responsibilities which cannot be condoned, especially in a seasoned landlord.”
There was significant public interest in discouraging landlords from renting out unlawful properties to vulnerable people, Lash ruled.
The landlord was ordered to refund the former tenant $7294, 25 per cent of the $29,179 rent paid during the tenancy.
Lash also ordered the landlord to pay a total of $3950 in exemplary damages, including $500 for failing to lodge the tenant’s bond, $250 for not providing a copy of the tenancy agreement, $200 for a faulty kitchen tap and $1000 for a lack of heating.
The lack of an extractor fan or opening window in the kitchen, described as a “significant breach”, also attracted exemplary damages of $2000, while the landlord had to refund the tenant $215.71 in electricity costs, $30 for a week without hot water, $65 for the Wellington City Council documents and $200 in costs to take the case.
“I consider [the landlord] should have been or was aware of this requirement and so this unlawful act was intentional, and an award of exemplary damages is justified,” Lash ruled in relation to the extractor fan.
However claims for an unjustified rent increase, a washing machine that didn’t work, a request to remove belongings, a faulty front door, leaking spouting, a lack of outdoor lighting, a fridge that partially blocked a doorway, and insufficient drainage were all dismissed because they hadn’t been raised with the landlord.
“Accordingly, there is no basis for compensation and the claim must be dismissed.”
