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Tribunal asks for the Code of Compliance to consider claims for arrears or damages

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  • #16
    we need to be carefull with the language we use.

    A CoC is a certificate of Compliance under the RMA

    it attests to the fact that under the district plan a certain use is compliant. It has the same status as a resource consent but is used to confirm compliance whereas a RC allows for a breach.

    The term CoC gets confused with CCC Code Compliance Certificate which is under the building act and only relates to the building work in a particular building consent.

    which is the TT referring to in this case?????

    even in this thread posters are confusing the different certificates???

    The problem we have is ignorant TT adjudicators making assumptions about what is unlawful and what may nbe unapproved which is not the same under the building act but could be under the RMA??

    I am dealing with this problem as well for a friend it is a serious issue with TT interferring in contracts and agreements

    Comment


    • #17
      Update. The Ministry of Business has confirmed these questions have been escalated a number of times "to the highest level", where they have been discussed in detail and a response is expected soon...

      Meanwhile, some of my own research has partial answers, which may help others battling unsubstantiated claims.
      • Damages, etc. are not available to buildings declared unlawful residential premises, but the request for damages does not create a duty on the adjudicator to explore a building's status.
      • Nothing in the Act requires an adjudicator to investigate if a property is unlawful, yet you cant stop them, but it should be because of evidence or an allegation presented. If the adjudicator wants to investigate, ask for specific allegations - a fishing trip is not what was intended.
      • An investigation can't produce a decision that premises are unlawful without written or verbal evidence at the hearing - allegations are not sufficient - get the adjudicator to list the evidence, then attack it.
      • It is necessary that the tenants cannot occupy/use the property without them committing an offence, etc. by using the property in its state. Ask for clarity about the offence the tenant would / did trigger through the intended use.
      • Your relevant acts or omissions are required - your on your own here.
      • The term "residential premises" has no impact on any contract: the Tenancy Agreement and Tenancy, are defined with the more general term "premises", and the definition of premises does not imply exclusivity or totality. If the adjudicator believes something unexpected, its probably a misunderstood definition.
      • There is no reason why it would be illegal to occupy the majority of rented buildings without missing paperwork. Rented properties and owner occupied premises usually fit within the definition of "private dwellings" in the Building Act, and neither should be regarded as a "public building" . The exception is hotels, motels and mixed-use buildings like a dwelling above a shop, which are public buildings in full or part, therefore if the building work on the dwelling could impact the public part then all paperwork must be complete. If an adjudicator suggest a rented property is a public building, remind him the Building Act states that private dwellings are not public buildings (a dwelling is at least a room, a Place of Abode, where the Tenant habitually has a Place of Residence). For a dwelling in a public building, its still possible the tenant doesn't risk an offence: Argue that the public building is everything but the dwellings within.
      • The issue must be with the premises of the Tenancy of the Tenancy Agreement. An issue with a different building on the same site does not impact other buildings
      The poor terminology came from the adjudicator on the day. He said CoC but I believe he meant CCC, as his opinion was "the wording of the act required independent CoC per building for building work", and he argued that rented properties are public buildings as the public are available to view. At the time I found his opinions suspect, I now suspect they may have resulted in flawed decisions at other hearings.

      I think there are a limited number of pathways to rented properties being considered unlawful (don't take any of the following as complete or definitive):
      • Breaching the regional or district Resource Management plans without written approval (e.g. renting a building not allowed as a Place of Abode e.g. where a resource consent states its not a habitable building), even then an abatement notice or enforcement order may be required.
      • A tenant expecting to allow any other person to use premises that doesn't meet the Housing Improvement Regulations 1947. This means the tenant is inhibited by an offence that follows if they were to subject a 3rd party to the inadequacy.
      • Renting a building while unsanitary, or breaching the notices about a contaminated (etc.) building (covid, athletes foot, nuclear radiation, etc.)
      • Unsafe buildings due to earthquake damage
      • Maybe missing paperwork on a building that has mixed commercial and residential use (e.g. rooms above a fish shop).
      • I am sure Healthy homes applies somewhere, where its in-scope.

      Comment


      • #18
        Well researched post well done!

        how is housing improvement regulations enforced?

        I dont think you are correct about mixed use unless a BWOF was triggered but this is not always the case, There is special obligations on a building consent involving a public building that should be used unless a CCC is issued or a CoPU issued instead (certificate of public use) but these are particular public buildings. This is not the same as applies to an existing building?

        Comment


        • #19
          in respect to the original post there is a way to split consents so two CCC are issued. This could apply to a building consent that is still open or to a CCC already issued (but I am not sure this needs to be done?)

          sorry I now see that this was a pre building consent sitsuation? in which case there is no requirements for final inspections.

          Comment


          • #20
            According to the local council, about 40% of buildings in their area have a non-compliance to the Building Code and therefore would be an unlawful residential premises if rented as a public building. They have budget and resources for about 4 prosecutions per year. Therefore prosecutions are rare, and I think you have to really **** off the enforcement team before they commence legal action.

            But that's not the point. The TT considers independently if you may have done something unlawful, they don't need to see a prosecution. If in their opinion you did, wrong, then your compensation request collapses. The the total financial cost may easily exceed the maximum fine allowed on the original offence! As part of my research I reviewed a bunch of random TT decisions, and found many had involved a counter claim made by the tenant that the Tenancy had a Housing Improvement Regulations breach. I don't recall if the tenants gave verbal evidence, which would mean the landlord would have no opportunity to collate evidence....

            Regarding mixed use buildings,
            • Building Act 2004, Section 362W, applies to premises that are all or part of a building, where the premises are open to the public. Any premises of the building that the public are excluded from are therefore not in scope of section 363, which address a certificate of public use,
            • If the premises are a household unit (saleable real estate), or otherwise a private home which do not have public use (source https://www.building.govt.nz/project...blic-building/) [as a private home has no "public use"].
            • The Building Act assumes that a public building has some ONE person is in charge, who can exclude the public on documentation issues. Some mixed use buildings don't have that common person.
            As to the argument that a rental is a public building because "members of the public can view the property at an open viewing" then by the same argument all homes are public by virtue of the open-home selling process and all homes are capable of a parcel delivery, so all would need a certificate of public use. if this was intended, there would be no reason to have an exception based process for public use, as all buildings would be deemed public! According to (https://www.building.govt.nz/project...blic-building/) private homes are not public buildings [and they can change between owner occupied and rented freely].

            The history of my property was:
            • The section was created by subdivision, and was in effect a household unit with no buildings.
            • A builder relocated two buildings (to become a main residence and family flat) to my site under one building consent, which is how the Building Act works, however the adjudicator believed the RTA requires an independent CCC per building.
            • The household unit was sold . The household unit (both buildings) became owner occupied.
            • I believe there was a first tenant in a home and income scenario.
            • The owners later rented the family flat and main residence under two paper based fixed term rental contracts while they went through the divorce process;
            • I bought the property, and allowed the tenants to remain, replaced the contracts with my own when the originals expired.
            According to this adjudicator (his opinions in paraphrase, not actual facts),
            • my buildings will now always be unlawful residential premises:
              • because it has historic building work impacting two buildings performed under only one consent, and (the way its meant to work)
              • because the rental Agreements don't comply to his understanding of the RTA, which he thinks requires all premises at an address to be available to the tenants (not true)
            • the dwellings on the household unit are both public buildings, because the general public can apply for a Tenancy (the Act requires a use, unless it a thoroughfare)
            • The open-viewing process for prospective tenants are the public using the buildings (argument makes all NZ buildings public)
            • No one can allow Public buildings to be used if the building consents are complete (partially true, the tenant of each rental agreement cannot allow anyone else to use the Tenancy in a public building such as a Tenant in common or guest).
            • The RTA requires an exclusive CCC for building work per building (it doesn't)
            • The new definition "Residential Premises" means all of the premises at an address (it means all of he places of abode, owner occupied or rented)
            • A Rental Agreement must be for the entire Residential Premises (The act says otherwise)
            • . But when I look at the RTA and Building Act to see where this comes from, and I find that its unlawful to occupy a building with missing consents if its a public building. In any other context its illegal to do building work without consents, but not illegal to then occupy the building. But the adjudicator beliefs all rentals are public buildings, which is contrary to the Building Acts statement.
            • All home and income arrangements are now incompatible with the requirement for the Tenancy to be the entire residential premises (untrue)
            • I performed an illegal act in not ending the tenancies in a public building with deficient certificates when I purchased it.

            To cut a long story short, the TT adjudicators are hearing potentially invalid legal arguments from tenants that haven't been demolished there and then, that the adjudicators then take to future hearings.

            Comment


            • #21
              Originally posted by nsteveinz View Post
              To cut a long story short, the TT adjudicators are hearing potentially invalid legal arguments from tenants that haven't been demolished there and then, that the adjudicators then take to future hearings.
              They may do that, but there is no obligation to do so.

              Originally posted by RTA
              85 Manner in which jurisdiction is to be exercised
              (1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.
              (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
              That last bit also means no requirement to give effect to precedents.
              Want a great looking concrete swimming pool in Hawke's Bay? Designer Pools will do the job for you!

              Comment


              • #22
                nsteve;

                there is a lot to address here so I have copy and paste with my comments UPPERCASE;
                (AND APPOLIGIES FOR LENGTH OF REPLY IN ADVANCE

                "According to the local council, about 40% of buildings in their area have a non-compliance to the Building Code (I SAY MORE LIKELY 80% AND AS STANDARDS CHANGE ALL BUIULDING BECOME NON COMPLIANT TO THE BUILDING CODE ( AND IN FACT ARE ALSO IMPOSSIBLE TO PROVE THEY ARE) SO WE SHOULD NOT BE SURPRISED??????

                and therefore would be an unlawful residential premises if rented as a public building. They have budget and resources for about 4 prosecutions per year. Therefore prosecutions are rare, and I think you have to really **** off the enforcement team before they commence legal action.YOUR SOURCE IS MISINFORMED. tHE BUILDING ACT ONLY REQUIRES COMPLIANCE WITH THE BUILDING CODE FOR BUILDING WORK. THAT IS THE WORK DONE NOW AND IS NOT THE BUILDING UNLESS IT IS A NEW BUILD,

                MOST COUNCIL OPERATE UNDER THE BA 2021 (THE BLUFF ACT 2021 WITH REVISIONS EVERY YEAR)
                IF THEY THINK THEY CAN PROSECUTE THEN BRING THIS ON. THE 1991 ACT HAD A SPECIFIC CLAUSE THAT THE CODE DOES NOT APPLY TO EXISTING BUILDINGS AND THE EFFECT OF S42a S112 TO 116A OF THE 2004 ACT IS THAT THE COUNCILS ONLY HAVE LIMITED POWER TO REQUIRE WORK TO AND EXISTING BUILDING AND GENERALLY THIS MEANS IF NOT DANGEROUS OR INSANITARY THEY HAVE NO POWER AT ALL.(SO EXCEPT WHEN YOU WANT A CONSENT/CCC OR APPROVAL FOR A CHANGE OF USE

                But that's not the point. The TT considers independently if you may have done something unlawful, they don't need to see a prosecution. If in their opinion you did, wrong, then your compensation request collapses. BUT SOMETHING UNLAWFUL IS SOMETHING CONTRARY TO THE BUILDING ACT OR RMA. THE BUILDING ACT HAS CERTAIN OFFENCES
                The the total financial cost may easily exceed the maximum fine allowed on the original offence! As part of my research I reviewed a bunch of random TT decisions, and found many had involved a counter claim made by the tenant that the Tenancy had a Housing Improvement Regulations breach. I don't recall if the tenants gave verbal evidence, which would mean the landlord would have no opportunity to collate evidence....

                Regarding mixed use buildings,
                • Building Act 2004, Section 362W, applies to premises that are all or part of a building, where the premises are open to the public. Any premises of the building that the public are excluded from are therefore not in scope of section 363, which address a certificate of public use
                S362 ONLY APPLIES TO BUILDINGS THAT THE PUBLIC USE .....AND DOES NOT MEAN A BUILDING THAT THE PUBLIC CAN ENTER
                S363 ONLY APPLIES TO A BUILDING
                THAT IS SUBJECT TO BUILDING WORK THAT REQUIRES A CONSENT. tHE IDEA IS THAT SAFTYETY SYSTEMS ARE OPERATING WHEN THE PUBLIC ARE THERE. tHIS CLAUSE ONLY APPLIES TO CONSENT GRANTED BEFORE 2003 (Sorry EDIT 2005)(S363B) BTW THIS WAS INSERTED IN 2005 BECAUSE THEY REALISED THAT THE BEEHIVE NEEDED TO BE SHUT DOWN AS SO MUCH WORK HAD OUTSTANDING CCC'S a CPU WAS IMPLEMENTED TO ALLOW FOR BUILDINGS OPEN BUT \ALSO WITH A CONSENT(AND NO CCC)
                • If the premises are a household unit (saleable real estate), or otherwise a private home which do not have public use (source https://www.building.govt.nz/project...blic-building/) [as a private home has no "public use"]. IT IS NOT INTENDED FOR PUBLIC USE
                • The Building Act assumes that a public building has some ONE person is in charge, who can exclude the public on documentation issues. Some mixed use buildings don't have that common person. I DONT KNOW WHERE THIS IDEA COMES FROM??
                As to the argument that a rental is a public building because "members of the public can view the property at an open viewing" then by the same argument all homes are public by virtue of the open-home selling process and all homes are capable of a parcel delivery, so all would need a certificate of public use. YES BUT BUILDING WORK (BECAUSE THERE IS A CONSENT)NEEDS CPU NOT THE BUILDING PER SE if this was intended, there would be no reason to have an exception based process for public use, as all buildings would be deemed public! According to (https://www.building.govt.nz/project...blic-building/) private homes are not public buildings [and they can change between owner occupied and rented freely].
                AND PUBLIC BUILDINGS MAY HAVE SPECIFIED SYSTEMS THAT REQUIRE BWOF FOR THIER SYSTEMS TO CERTIFY THAT THEY ARE PERFORMING TO DESIGN REQUIREMENTS (BUT THIS CAN STILL MEAN NON COMPLIANT WITH TODAYS STANDARDS)
                The history of my property was:
                • The section was created by subdivision, and was in effect a household unit with no buildings.
                • A builder relocated two buildings (to become a main residence and family flat) to my site under one building consent, which is how the Building Act works, however the adjudicator believed the RTA requires an independent CCC per building. I THINK THEY ARE MEANING COC (CERTIFICATE OF COMPLIANCE UNDER RMA) BUT THESE ARE NOT MANDATORY BUT DO ATTEST THAT A BUILDING USE CONFORMS WITH THE DISTRICT PLAN AND NOT IN BREACH OF RMA (THAT COULD BE AN OFFENCE AND UNLAWFUL) A BREACH NEEDS A RESOURCE CONSENT) IN YOUR CASE YOU COULD GET ONE
                • The household unit was sold . The household unit (both buildings) became owner occupied. BECAUSE IT REMAINED UNDER SAME OWNERSHIP THE FAMILY UNIT/MINOR DWELLING IS LAWFUL AND AS A SEPARATE BUILDING CAN HAVE A SEPARATE HOUSEHOLD
                • I believe there was a first tenant in a home and income scenario.BUT THERE ARE SEPARATE HOUSEHOLDS AND THESE CAN BE RENTED SEPARATELY
                • The owners later rented the family flat and main residence under two paper based fixed term rental contracts while they went through the divorce process; THIS WAS LAWFUL IF THE DWELLINGS ARE SEPARATE
                • I bought the property, and allowed the tenants to remain, replaced the contracts with my own when the originals expired. THEY WERE ENTITLED TO BE THERE
                According to this adjudicator (his opinions in paraphrase, not actual facts),
                • my buildings will now always be unlawful residential premises:
                  • because it has historic building work impacting two buildings performed under only one consent, and (the way its meant to work) THIS IS BULL SHIT
                  • because the rental Agreements don't comply to his understanding of the RTA, which he thinks requires all premises at an address to be available to the tenants (not true) NO BUT THE RTA DOES ALLOW FOR QUIET ENJOYMENT OF THE PREMISES AND THIS IS IMPOSSIBLE WITH SHARED PREMISES SO THIS IS WHERE LINE IS CROSSED. SO EITHER CONFORM OR RENT AS OWNER OCCUPIER(OUTSIDE THE rta)
                • the dwellings on the household unit are both public buildings, because the general public can apply for a Tenancy (the Act requires a use, unless it a thoroughfare) NO THEY ARE NOT PUBLIC USE
                • The open-viewing process for prospective tenants are the public using the buildings (argument makes all NZ buildings public) NO THEY ARE NOT FOR PUBLIC USE
                • No one can allow Public buildings to be used if the building consents are complete (partially true, the tenant of each rental agreement cannot allow anyone else to use the Tenancy in a public building such as a Tenant in common or guest). THIS DOESNT MAKE SENSE??? IT IS TRUE THE TENANT CANNOT BREACH THE RESOUCE MANAGEMENT ACT OR BUILDING ACT
                • The RTA requires an exclusive CCC for building work per building (it doesn't) I AGREE THIS IS WRONG AND MANY BUILDING DONT HAVE CCC BECAUSE THEY PREDATE THE BUILDING ACT 1991
                • The new definition "Residential Premises" means all of the premises at an address (it means all of he places of abode, owner occupied or rented)
                THE rta STATES"residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful AND
                premises includes (other than in relation to a boarding house tenancy, in which case the definition in section 66B applies)—
                (a) any part of any premises; and
                (b) any land and appurtenances, other than facilities; and
                (c) any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land

                I THINK THE TT IS TRYING TO LIMIIT THE DEFINITION WHEN IT IS IN FACT INCLUSIVE?
                • A Rental Agreement must be for the entire Residential Premises (The act says otherwise) THE AGREEMENT MUST DESCRIBE THE PREMISES AND PRACTIVCALLY CANT BE SHARED PREMISES
                • . But when I look at the RTA and Building Act to see where this comes from, and I find that its unlawful to occupy a building with missing consents if its a public building. NO IT DOESNT SAY THIS BUT IT MUST BE SAFE AND SANITARY In any other context its illegal to do building work without consents, but not illegal to then occupy the building. I AGREE THE OFFENCE IS TO THE PERSON BUILDING NOT THE BUILDING PER SE But the adjudicator beliefs all rentals are public buildings, which is contrary to the Building Acts statement.AND IS WRONG THINKING
                • All home and income arrangements are now incompatible with the requirement for the Tenancy to be the entire residential premises (untrue) i AGREE UNTRUE AND ALSO HOME AND INCOME IS OUTSIDE RTA IF OWNER OCCUPIER
                • I performed an illegal act in not ending the tenancies in a public building with deficient certificates when I purchased it. BULL SHIT

                To cut a long story short, the TT adjudicators are hearing potentially invalid legal arguments from tenants that haven't been demolished there and then, that the adjudicators then take to future hearings.

                I AGREE AND THE INDUSTRY MUST CONFRONT THIS AS A BODY OR ALLOW IT TO BE DESTROYED BRICK BY BRICK......................THE PROBLEM IS IGNORANT TT AJUDICATORS MAKING UP THE LAW.
                Last edited by John the builder; 02-10-2021, 11:28 AM.

                Comment


                • #23
                  I agree john in most respects except
                  • the comment about the occupants of a building being a household, as a "household unit" has a very specific meaning, being the totality of buildings that cannot be sold in part. The two buildings are homes, and meet the definition of dwelling units. The occupants of a dwelling are a family, which means, wait for it, one or more people. in my case the mother is in one, and the daughter is in another, so by circumstance they happen to be blood relatives.
                  • My building file contains an adequate resource consent for the buildings, it places no extra requirements, and therefore the regional and district plans determine what I can do. As far as I know, there is no prohibition about renting a family flat, unless they ask for such a restraint to be added to the title, which I have seen.
                  • My source is the head of planning at the council, he meant that these household units/rateable units had an issue with the code of the day at the time of the building work of sufficient merit to justify a referral to the enforcement team, had they the funds to address them. While the building act is based on building work, councils manage building work and enforcement on a rateable unit basis.
                  • No-one can use [the affected parts of] a public building while the paperwork [for building work] is INcomplete, sorry for the original typo. Therefore unconsented work in a public building potentially creates the jeopardy for the tenant that triggers one of the three tests for an unlawful residential premises. The adjudicator discussed a need to stamp out unconsented creation of dwelling units, and I imagine this needs the public building label to trigger the tenant jeopardy.
                  I'm not clear why "quiet enjoyment of shared premises would be impossible". Shared premises are indirectly mentioned by the act (boarding houses are 6 or more tenancies in a building) so it sounds like a contrived paradox. Does anyone have a handle on the exact issue?. Is it as simple as saying two self-described families cannot rent the same premises, as the premises of a Tenancy are a dwelling unit, by definition for one family?

                  I don't think my encounter with this adjudicator shows malice on behalf of the Tenancy Tribunal, rather than just poor research by the adjudicators and a bit of arrogance. The TT is trying to stamp out poorly constructed, damp housing wrapped around the buildings foundations, commercial buildings with no insulation that have inadequate ventilation or windows, etc., but in doing so they are over-reaching.

                  It was the first time at a hearing, and I was not prepared for the misinformation level, and hadn't done the research that was necessary to defend myself. I'm back soon, and have a lot more research behind me this time.

                  Comment


                  • #24
                    Originally posted by nsteveinz View Post
                    No-one can use [the affected parts of] a public building while the paperwork [for building work] is INcomplete, sorry for the original typo. Therefore unconsented work in a public building potentially creates the jeopardy for the tenant that triggers one of the three tests for an unlawful residential premises. The adjudicator discussed a need to stamp out unconsented creation of dwelling units, and I imagine this needs the public building label to trigger the tenant jeopardy.
                    Is there another way you can express that? I'm confused.
                    I thought that you'd determined that a residential tenancy unit is not a public building.
                    Want a great looking concrete swimming pool in Hawke's Bay? Designer Pools will do the job for you!

                    Comment


                    • #25
                      okay, next rewrite.

                      Anyone (such as my adjudicator) claiming a rental is an unlawful residential building due to unfinished building work, missing consents etc. would need to provide evidence to the following pathway:
                      1. The tenants rent part of a public building.
                      2. Document the building work that is unconsented, incomplete or has a necessary paperwork gap.
                      3. The landlord causes breaches of the building act by allowing the tenants to occupy affected areas impacted by such building work at some point during the tenancy, which is an offence
                      4. The tenant in a public building breaches the building act, or was unable to occupy the Tenancy in the way intended to avoid breaching the building act. (BA 2004, section 363 "(1) A person who owns, occupies, or controls premises to which section 362W applies [public buildings] must not use, or permit the use of, any part of the premises that is affected by building work"). A person who fails to comply with subsection (1) commits an offence.
                      The adjudicator claimed that all rentals are public buildings because they can be viewed by prospective tenants, which are the general public. No one agrees with the adjudicator, but I have yet to see a definitive proof that most rentals are not public buildings. However I see the following defences:
                      • Residential Accommodation in public buildings will have the use definition "SC, SD or SA" in the Building Consent or district/regional plan as defined by the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005, while a building housing a Tenancy is classified or would always be classified as "SR" or "SH" (private dwelling within a mixed use building or stand-alone private dwelling). (FYI: SC = long term care, SD = prison etc., SA =temporary accommodation or care).
                      • https://www.building.govt.nz/ claims a private home is not a public building. The same reference shows buildings for temporary occupancy are public buildings, and that [only] the foyer [corridors, lifts and some safety systems] of apartments are public buildings - meaning the apartments are private homes (i.e. use "SR").
                      • Until an offence is proven by a prosecution, it does not meet the status of an unlawful act.
                      • If the viewing of a prospective rental means its a public building, then every NZ building is a public building, via the real estate open homes sales process. The Building Act however treats public buildings as an exception, so the reason given must be invalid.
                      • In practise the general public is excluded by the rental tendering process, The people that view a rental are by selective invitation, the invited prospective tenants do not "use" the building.
                      • Private dwellings are intended for the habitual use of its occupants, the general public are permanently excluded, with access granted only to selected persons even if the selection is based on limited criteria

                      Comment


                      • #26
                        Anyone (such as my adjudicator) claiming a rental is an unlawful residential building due to unfinished building work, missing consents etc. would need to provide evidence to the following pathway . . .
                        The adjudicator claimed that all rentals are public buildings because they can be viewed by prospective tenants, which are the general public. No one agrees with the adjudicator, but I have yet to see a definitive proof that most rentals are not public buildings. However I see the following defences.
                        Intriguing.

                        But I do see something that I think you have wrong.

                        The Adjudicator is under no obligation to prove anything - one way or another. An Adjudicator is not "above the law," but you have to prove non-compliance with law by the Adjudicator, accepting the provisions of section 84 RTA.

                        I.e. It is your responsibility to adduce evidence that shows xxx determination by an Adjudicator is wrong in law.

                        Even if you have to appeal for a re-Hearing or to the District Court. Every aspect of the RTA is weighted in favour of tenants and the Tenancy Tribunal as their surrogate (and surreptitious) advocate.
                        Want a great looking concrete swimming pool in Hawke's Bay? Designer Pools will do the job for you!

                        Comment


                        • #27
                          I have been given an OIA from TS on what training was given to staff( I can share this by PM if desired or someone tell me how to attach it?) on unlawful

                          There seems to have been a interpretation that the change to residential premises definition to include illegal premises meant that converted garages and the like could be deemed unlawful??

                          The mistake seems to have been that something is only unlawful if contrary to an act or an offence under it. I see nothing in building act that stops unconsented work being rented. There is provision for dangerous or insanitary but this also applies to consented buildings.The RMA could apply but if residential allowed then there is no distinction for rented property (unless a boardinghouse was established outside what was allowed for a dwelling)

                          I think TT are overreaching??

                          Comment


                          • #28
                            nsteveinz:
                            The RTA requires an exclusive CCC for building work per building (it doesn't)

                            This is the key sentence to all the issues experienced. It would be in reality your best defence against any absurd ruling they try and lay against you.

                            Your situation would mirror thousands of similar situations across NZ . I have read recently a TT hearing decision where a basement tenant complained of noise issues from above , the landlord had placed a plywood sheet across the stairwell and then rented the basement below separately . The TT viewed this as unauthorized and consequently awarded some of the rent paid back to the tenant. Part of the reasoning behind it was the unauthorized works entered into and should therefore not have been rented out separately.

                            A friend of mine bought a house that was originally sold to him 23 years ago as a home and income situation. After buying the property it turned out the lower floor had unauthorized works which had previously been scrutinized by council and a "safe and sanitary" certificate issued after they had received a full engineering report completed by the previous owner..Effectively this meant they will not take action on the unauthorized works as long as they remain in the same state. The building is only listed as 1 dwelling but he has always rented out both lower & upper parts separately, though there is a common outside area. The water & power are included in the rent as their are no separate meters.. The tenant renting the lower ground floor has resided their 23 years and been there since he bought the property. Upper house tenants have come and gone over the years. If the whole place is rented out to a single family vs 2 separate families their is not any certain discernible difference since both could maintain the same privacy levels as 2 separate entities. Yet we have an utterly ridiculous situation where the powers that be are creating a somewhat bothersome issue if it was determined that the whole premises could only be rented out as 1 dwelling..

                            Their are thousands of these types of situations throughout NZ .

                            Comment


                            • #29
                              Originally posted by mrsaneperson View Post
                              nsteveinz:
                              The RTA requires an exclusive CCC for building work per building (it doesn't)

                              This is the key sentence to all the issues experienced. It would be in reality your best defence against any absurd ruling they try and lay against you.
                              Do you suggest that the false claim regarding the RTA be brought up with the Adjudicator, or left until an appeal on a point-of-law is lodged with the District Court?

                              Want a great looking concrete swimming pool in Hawke's Bay? Designer Pools will do the job for you!

                              Comment


                              • #30
                                Originally posted by Perry View Post
                                Do you suggest that the false claim regarding the RTA be brought up with the Adjudicator, or left until an appeal on a point-of-law is lodged with the District Court?
                                The problem with the adjudicators as we all know is different ones make different decisions . I think Andrew King / Property Investors Assoc should get involved with this and get a point-of-law established through the District Court - emphasis being "thousands of tenants will lose their home" - or we are going to continue down a track of random draconian rulings thrown here ,there & everywhere..

                                Cindy's government solves (tic) the housing crisis by deeming perfectly fine rentals as unfit through quackery nonsense, making more people homeless - the government (what government?) then buy motels and houses them there.

                                I remember that sleepout set-up a few months back which was consented but deemed as "change of use of building" , again another lop sided "scream at the arbitrator" decision that awarded 2 years rent back to the tenant.

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