Christchurch businessman’s appeal against Tenancy Tribunal decision dismissed
A Christchurch businessman’s appeal against a Tenancy Tribunal decision, that found he rented out part of a dangerous commercial building as a residential rental, has been dismissed.
The Tribunal ruled in December 2021 that, while Gary Gray predominantly used the Talfourd Place premises to operate his business, ‘Doctor Concrete’, he had breached the Residential Tenancies Act 1986 (The Act) by renting areas of the building as a residential rental.
He was ordered to pay $9,620.44 in exemplary damages, reimbursement of rent and costs to the Ministry of Business, Innovation and Employment (MBIE), on behalf of one affected tenant.
The tenant was employed by Mr Gray while renting a makeshift unit on a mezzanine floor in the building, which the City Council had issued a dangerous building notice.
During a site visit by MBIE’s Tenancy Compliance and Investigations Team (TCIT), the Christchurch City Council and Fire and Emergency New Zealand (FENZ) in February 2021, a number of people were found to be living in substandard conditions on the mezzanine floor area constructed by Mr Gray.
While acknowledging that others had lived at the address, Mr Gray disputed that the tenant who initially raised the complaint was one of them.
It was established that no building consents had been obtained for the building work, and it was unlikely to comply as the building did not meet the standards of the Building Code.
It was also noted that there was flammable material stored directly below the residential areas. The building had no fire alarm system and lacked escape routes and fire exits.
The Tribunal found Mr Gray had committed an unlawful act intentionally and over an extended period of time, in that he failed to comply with all requirements in respect of building, health and safety under enactments that apply to the address. The Adjudicator also ruled that the premises were unlawful and should not have been occupied.
Brett Wilson, National Manager, TCIT, said the Adjudicator highlighted in his findings that Mr Gray was aware from 2017 of the unlawfulness of his arrangements in using the building for residential use.
“The Adjudicator also highlighted Mr Gray’s efforts to impede the investigation and said he found it difficult to conceive a more significant and sustained breach of the Residential Tenancies Act.”
Mr Gray subsequently appealed the decision and an appeal hearing was heard by Judge Tuohy at the District Court in Christchurch on 14 December 2023.
Judge Tuohy dismissed the appeal and stated that evidence provided by a new witness, which was intended to be the main plank of Gray’s defence, had the opposite effect, causing him to conclude that the tenant had undoubtedly been a tenant, residing at the premises.
Brett Wilson was pleased the Tribunal’s ruling was upheld and that Judge Tuohy and the Adjudicator had both highlighted how inappropriate it is to rent out unconsented, non-compliant and unsafe properties to tenants.
“Judge Tuohy highlighted that Mr Gray was the landlord and that the deliberate and blatant breaches of fire safety and other provisions put the lives of vulnerable people at risk.”
On 12 March 2024 MBIE was awarded further costs of $3000 in defending the Tribunal decision.
Landlords need to comply with various legal obligations
The Tenancy Tribunal has full jurisdiction over cases that concern unlawful residential premises.
Unlawful residential premises are properties that cannot lawfully be lived in generally or by the tenant.
Examples of properties that may not be able to be lawfully lived in by a tenant include a property in a commercial premises such as office buildings.
The Act also reinforces that landlords ‘comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises’.
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