Landlord to pay tenant $9k over freezing, unlawful flat with noisy, rude neighbour

A woman who rented a unit that didn't have building consent and endured months of verbal abuse from a downstairs neighbour has been awarded $9020 by the Tenancy Tribunal. Photo / 123rf

A mother and son who rented a freezing-cold flat lacking Building Code compliance and were subjected to daily verbal abuse from another tenant have been awarded $9020 in compensation.

The tenant, who has name suppression, rented an upstairs flat in Auckland’s Belmont from Barfoot and Thompson in Devonport, in July 2022.

A Tenancy Tribunal decision said the flat was created by an illegal division of the dwelling into two residential household units.

Problems immediately arose with the tenancy, as the woman faced verbal abuse daily from a resident living in the unit downstairs, a heat pump broke down within weeks of them moving in and there were concerns about whether the flat met the Healthy Homes standard.

The renter complained to the tribunal the premises were unlawful as they did not have building consent; the landlord failed to take reasonable steps to ensure the downstairs occupant did not cause or permit interference with her quiet enjoyment of the premises; and the landlord breached their obligations by failing to repair the heat pump in a timely manner.

It was also alleged the landlord failed to ensure the premises complied with the standard aimed at making New Zealand homes warmer and healthier, and the tenant sought termination of the tenancy on the basis the premises were unlawful.

The tenant, supported by her mother, attended the tribunal hearing but the landlord didn’t.

In his written decision, tribunal adjudicator JR Smith began by noting there was nothing in the tenancy agreement suggesting it applied only to the upstairs of the premises, which made things problematic.

“The right to exclusive possession of the premises is a fundamental part of tenancy law,” Smith’s decision said.

“It appears that in this case, although the tenant signed an agreement to rent [the address] in fact she was not granted exclusive possession of that address.

“Instead, the downstairs was rented by the landlord to another occupant.”

Smith said the tenant had obtained a copy of the original plans from Auckland Council which confirmed the downstairs was originally a garage and had been converted for residential use.

“The tenant also said that the person she spoke with advised there is no record of an adequate firewall or acoustic barrier between the units.”

While each unit had a separate entrance and neither occupant could access the other unit, the change in use of the building required the owner to obtain written notice the new purpose would comply with the Building Code.

Smith said the council confirmed it had no knowledge the premises had been divided into two dwellings and ruled the units were “unlawful residential premises” due to the failure to obtain consent.

The termination of tenancy was granted from March 12, 2023.

At the hearing, the tenant detailed a range of ongoing issues with the occupant downstairs, from loud music and verbal abuse, to that occupant putting the rubbish bin by her front door rather than its allocated space.

“There has been yelling and screaming on an almost daily basis,” she said.

She raised the problems with the landlord on a number of occasions but no action was taken.

“The response has either been to ignore the issue, tell the tenant they aren’t sure what to do about it, or tell her to call the police.”

Smith was satisfied the landlord had not taken reasonable steps to deal with the problem.

A heat pump broke within weeks of the tenant moving into the flat and despite the landlord being immediately notified, it took six months to be fixed.

“Consequently, the tenant said the home was freezing cold in the winter and she ended up purchasing an oil heater to put in her son’s bedroom.”

Smith calculated the total rent paid by the tenant from July 2022 to March 2023 would have been $23,632 and determined $7000 would be an appropriate award due to the premises being ruled unlawful.

A further $2000 compensation was ordered for the broken heat pump and unruly neighbour and Smith also reimbursed the tenant’s filing fee of $20.44.

“The tenant paid rent and in return expected a clean, dry, warm home that was properly maintained. She was also entitled to expect that she would have quiet enjoyment of her home.”

While Smith was satisfied the landlord had committed a number of unlawful acts, it was determined it would not be appropriate to award exemplary damages.

“This is because the primary breach by the landlord in this case is the fact that the premises are unlawful. That issue has already been remedied by the order to reimburse rent.”