Landlords Ineke Kranenburg, Kranham Ltd and Andrew Graham converted one house into two flats, one upstairs and the other downstairs by installing a plywood ceiling at the top of the internal stairs. Each area had its own bathrooms, bedrooms, living areas, kitchen and outdoor space.

The tenant and landlords entered a one-year fixed term tenancy for the downstairs flat in January this year, which was due to end on January 5 next year. The tenancy agreement allowed the tenant to have two other flatmates with the trio paying weekly rent of $850.

A major issue for the tenant was the lack of soundproofing between the two flats. Where the landlord had sealed off the stairs meant that usual living noises of the upstairs tenants could be heard by the tenant and her flatmates downstairs.

The issue with sound became apparent almost immediately after the tenants moved in. The tenant says the landlord had assured her the upstairs tenants were quiet.

She described the noise as “normal walking [which] sounded extremely heavy, audible and reverberated through the downstairs unit. She was able to hear conversations from upstairs. The noise was well above what would be fair and reasonable to expect if living in a downstairs unit.”

The tenant considered the problem was not the loudness or type of noise generated by the upstairs tenant rather the lack of any soundproofing between the units.

Constant Noise Issues

Confirming when they sealed off the stairs, converting the property into two flats, the landlords did not add in any sound proofing or insulation to the stair area but instead used sheets of wood.

Both the landlords and upstairs tenants were continually reminded by the tenants downstairs of the noise issues. The tribunal heard the upstairs tenants were accommodating, but the problem was with the premises not with the upstairs tenants.

The tenant said the constant noise issue was the reason behind one of her flatmates leaving. This put her in a difficult situation as prospective flatmates always asked about the noise from above and she did not want to mislead them – it left her being unable to rent out the room for some time.

The landlords disputed the tenant left for this reason, but the tribunal said it was satisfied noise was an ongoing issue at the property because there was a history of text and email correspondence between the parties on the issue. The tenant sent breach notices to the landlords.

She says having to deal with the issues and move twice in less than four months “caused daily stress, disruption, problems and costs that affected my wellbeing, work, sleep and cost me money. If I had known about the property being unlawful there is no way I would have moved into the property for any amount of rent, let alone $850 a week.”

The tenancy ended by mutual agreement on April 2 last year. The tenant went to the tribunal claiming the premises were illegal, the landlords breached her quiet enjoyment of the property, they did not take adequate steps to ensure none of the tenants in the upstairs flat interfered with her use or enjoyment of the premises or her privacy; and the landlords failed to maintain the property.

Illegal Conversion

A change from being a single house by conversion into two flats is a change of use that should have been notified to Auckland Council, the tribunal said. The landlords confirmed they did not obtain a change of use consent from sleeping single home to sleeping residential and the council planned to issue a notice to fix.

The tribunal said it was fair to deduct some rent taking into account the landlord’s motivation for renting the property, and their conduct during the tenancy; the tenant’s motivation for renting the property and bringing the claim, and the length of time she lived in the property; the benefits the landlord received in renting the property; and ensuring landlords do not unfairly profit from unlawful premises.

The tenant paid $8,500 in rent and the tribunal said the rent should be reduced to a third. Among the tenant’s other claims the tribunal awarded $100 in compensatory damages because the landlord did not replace a nail holding a bedroom window in place with a latch or replace other worn out latches.

The landlord claimed the tenant owed him rent; left the premises in an unclean state; damaged a blind in the bedroom; and that she misrepresented herself about her prior rental history, including that she had not been to the tribunal. The tribunal found it was not the same tenant and all the landlords’ claims were dismissed.