She sought $10,000 compensation and exemplary damages.
Christall, who rented the property for 85 weeks, paying a total of $22,950 in rent, was recently awarded a total of $7670.44 in compensation and for the reimbursement of her filing fee, by the Tribunal, following a hearing in November 2022.
A partial reimbursement of the rent paid was appropriate to ensure the landlord did not unfairly profit from the unlawful premises, it ruled.
“There is also a public interest in deterring landlords from benefiting from unlawful residential premises where failure to ensure compliance with statutory requirements creates a risk to the tenant’s safety.”
President of the New Zealand Property Investors Federation, Sue Harrison, agreed rental properties needed to be up to code and not pose any dangers to the occupants.
“They should be up to standard and compliant,” Harrison told NZME.
She said the organisation would assist landlords meeting the compliance criteria.
The self-contained flat, on Scarborough Terrace, had been constructed by converting a larger unit, one of two households on the property, into two separate dwellings but was done without resource or building consent.
Company director Richard O’Neill was advised by the council at the end of October 2020 it was aware the property was being used as multiple units without consent being obtained to split the dwelling and any alterations may breach the district plan.
The tribunal’s decision said the council then followed up with the landlord at numerous times during the next 12 months but no real progress was made to obtain either resource consent or a Certificate of Acceptance in respect of the building work.
“The landlord did attempt to obtain professional advice from architects but was not otherwise proactive in trying to resolve issues with the council or to ensure compliance.”
Christall only became aware of the problems on November 10, 2021, when O’Neill texted her advising there was an issue with the unit.
O’Neill asked her not to let anyone into the flat, after he had been contacted by the council wanting to arrange a time for a compliance officer to do a site visit.
The council then issued a Notice to Fix on November 25, 2021, and directed the unit was no longer to be occupied.
Clarification was sought by the landlord about when the flat had to be vacated and the council reiterated there were fire safety concerns.
In March 2022, the council followed up on the Notice to Fix which required Christall to vacate immediately, as there was building work which did not comply with the Building Act or Building Code.
She left the flat on May 20, 2022, after renting the property for 85 weeks and paying $270 per week.
The landlord obtained retrospective resource consent for a third dwelling on the site in September 2022 but there was no evidence the fire safety concerns had been resolved at the tribunal’s hearing.
The tribunal found the premises could not be lawfully occupied during Christall’s tenancy.
“The landlord did not take all reasonable steps to ensure there was no legal impediment to the tenants’ occupation of the premises and did not comply with all Building Act requirements.
“Those failures have contributed to the unlawful occupation.”
While the tribunal noted the unit was modern, tidy and the landlord claimed it had been renovated to a high standard, the proper consent process had not been followed which led to the fire safety concerns.
“Mrs Christall said that she enjoyed the premises and saw it as her long-term home.”
While the tribunal found the landlord had committed an unlawful act by not lodging the bond within the required time frame, by a very fine margin it accepted it was an oversight and not a deliberate or intentional failure and declined awarding exemplary damages.
“However, the Tribunal may take a different view if there are similar applications against this landlord in the future.”
Attempts to contact O’Neill and Christall for comment went unanswered.
