A call to the council about a missing rubbish bin that alerted the council to the fact a rental wasn’t permitted has ended with a tenant getting back almost $10,000 back in rent.

The south Auckland tenant, who cannot be named, claimed he was given notice in May last year in retaliation for having alerted the council he was living in an unpermitted flat, when he rang to enquire about why he had no rubbish bin.

The landlord, named in a Tenancy Tribunal decision as former real estate agent Hasina Khan, cited the reason for the termination notice was because of planned, extensive renovations to the property.

The tribunal concluded the notice was retaliatory and ordered Khan to pay $2000 to the tenant in exemplary damages plus $9819 in rent compensation.

The tenant had sought a refund of all rent paid since he moved into the rental on December 14, 2020, until he left in August last year, but the tribunal said that would not have been fair, and instead awarded one-quarter of the rent back.

The two-bedroom unit, rented for $450 a week, was part of one house separated into three dwellings - the tenant’s unit was downstairs and two units were upstairs, one of which was occupied by the landlord and her husband.

The Auckland City Council had no evidence that it had ever permitted the property owned by Khan to be used for anything other than a single dwelling. Photo / Newstalk ZB

Khan told the tribunal that when she and her husband bought the property in the mid-1990s the house had already been converted into three single dwellings.

She said this was an attractive option as they lived in one dwelling, and their parents lived in the other two.

About 18 months ago the tenant became concerned that he did not have a rubbish and recycling bin, so rang the Auckland Council, and learned his property was not permitted as a separate dwelling.

As a result of his enquiries, in June 2021 a council compliance officer inspected the property.

In May last year, another council officer visited. The tenant wasn’t home, so he didn’t go inside but he did view the neighbouring premises within the property.

The council then issued the landlord a Notice of Fix, stating building works had been done on the property without a building consent, including additions made for use as rental accommodation.

There was no written authority that the building complied with every provision of the building code, notably fire rating performance.

Khan said that any work they did at the property was simply to replace or repair fixtures or fittings that were in place when they bought the property.

She claimed to not know that the basement area was only permitted as a garage and that the plans did not show any of the sanitary fixtures which had been added.

Khan said she did not receive a LIM (Land Information Memorandum) or property report when buying the house and had not applied for any council consents or permits since purchasing.

In 2017 Khan claimed to have asked the council about renting the property after her parents had died and was told by a council officer called “Bruce”, who she said inspected the property, that she could rent out the basement unit “provided that she notified the council every three years of the tenant’s names”.

She produced a copy of a letter she had written to the council dated February 24, 2017, which the tribunal said appeared to be stamped by the Manukau Council and which supported her position.

She also produced an email which recorded that the council had been informed that she was renting out two-thirds of the property.

However, the Tenancy Tribunal was satisfied, based on the evidence, the property was an unlawful residential premise, because it was not permitted or consented to be rented to the tenant as a separate premise, and that work had been completed on the property which did not meet the Building Code.

There was no evidence on the council file that it had ever permitted the property to be used for anything other than a single dwelling.

Neither were there records on council files of an inspection by a man by the name of “Bruce” or advice that corroborated what Khan said was the advice given to her.

Khan provided correspondence she wrote to the council in 2017 and 2022, advising that the property was rented out, but this did not take the place of lawful building consents and permits.

The tribunal said considerable work had been completed at the property, right up to May this year, which appeared to have required building consents but which had not been obtained.

 “The landlord said she was unaware that any of this work would require building consent, or would need to be inspected by the council, but I find this difficult to accept given that the landlord is a former real estate agent with 15 years’ experience.”

Khan argued she had relied on tradespeople to advise her whether she needed consents, but she was unable to provide the tribunal with the names or details of the tradespeople that she used.

NZME has tried reaching Khan for comment but was told she was currently on holiday.

She had requested name suppression, but the tribunal was not satisfied that there was any reason for this.

“I consider that it is in the public interest to name the landlords who have rented unlawful premises to tenants, to ensure that these premises are not rented out again without first being properly permitted and consented,” tribunal member Toni Prowse said.

The tribunal was satisfied that the landlord caused or contributed to the unlawful occupation for the reasons outlined.

The rules stated that a successful party who requested name suppression was granted it, and because the tenant was successful, suppression therefore applied.