The landlord industry has been rocked, in recent months, by the effects of the High Court’s decision of Anderson v FM Custodians Ltd [2013]
NZHC 2423. Specifically, the case has been cited as authority for tenants to claw back 100% of all rents paid throughout the time of tenancy
at the point of dispute. It doesn’t take much to acknowledge the gross injustice in most cases where landlords are not recompensated at all for
granting the benefits of exclusive possession to tenants. Still, if the recent Tenancy Tribunal order of Edwards, Bethani vs Wongeoon Vast Limited is anything to go by, it appears that all is not lost.
1. Background
Much had been written about Anderson and are widely available on the internet. A good breakdown of the effects it has on residential tenancy
can be found here. For the purpose of this discussion, it is sufficient to point out that Anderson has determined that unconsented premises
are not captured by the definition of ‘residential premises’ under the Residential Tenancies Act (“RTA”). Concerned properties, therefore, fall
outside of the RTA and are beyond the reach of the Tenancy Tribunal. The effect is such that the Tribunal itself has no jurisdiction to determine
claims deriving from the unconsented/unlawful nature of the property. That all sounded like an exercise in academic hair-splitting until Parry, Natalie Michelle vs Inglis, Vic came to popular attention. The adjudicator
in Parry, citing Anderson as precedent, determined that the tenant was entitled to claw back all the rents paid during the tenancy
without considering the landlord’s counterclaim. In the end, Mr. Parry had to sell his rental property in order to satisfy the order. It
is worthwhile to note that...
