Advocate challenges Tenancy Tribunal's 'almost impossible' order to shift cabin
A West Auckland woman ordered by the Tenancy Tribunal to remove a cabin from the front yard of her rented home has been given a task that's almost impossible to comply with and lacks legal justification, her advocate says.
Che Van Lawrence says he has applied to have the case reheard - that the first hearing and resulting decision were problematic.
Tracy Constable moved the cabin she inherited from an uncle onto the front lawn of her rented three-bedroom Massey house, as a novel solution to Auckland's "housing crisis".
Two of her adult children had recently returned home to live with her and her three other children, making the house a tight squeeze.
Constable saw the cabin as much-needed additional space and a commonly used solution to Auckland's dire housing situation. She offered to pay an additional $50 weekly rent for it.
But her landlord Harcourts Cooper and Co Real Estate Limited, which was only told about the cabin two months after she shifted it onto the site, objected to it and won the dispute in the Tenancy Tribunal.
Constable was ordered to remove the cabin within 90 days.
Van Lawrence said that order would be difficult for Constable to comply with, mainly because the tribunal ruled the cabin was a building, not a vehicle and therefore it now required building consent.
Constable had three options:
• Demolish it, with building consent;
• Move it, with building consent;
• Sell it, which would require the new owner to get building consent to move it.
Van Lawrence noted there was no guarantee consent would be granted and no guarantee as to when.
The only other alternative was to return the cabin to its former site.
But that property now had new owners who were "absolutely opposed" to having it.
Constable had no power to fulfil the order, Van Lawrence said.
Constable's situation with the landlord company was a David and Goliath one, Van Lawrence said.
There were also other ongoing issues and Constable felt the landlord company was trying to force her to move on.
Van Lawrence's application for a rehearing was on four grounds:
• There was an error of law in the decision or that it lacked legal justification;
• The hearing did not follow proper procedure;
• Evidence was allowed to be improperly submitted;
• Moving the cabin would be manifestly unjust.
The error of law, Van Lawrence said, was that not all buildings require consent.
The need for consent was also a matter for the council and did not automatically apply to anything found to be a building under the Building Act 2004.
There had been no evidence at the hearing that the cabin required building consent, Van Lawrence said.
He also questioned whether the tribunal was right to infer the addition of the cabin breached the tenancy agreement by altering use of outdoor areas.
He claimed the landlord company was overrepresented in the hearing with two property managers - one with 15 years experience - and two lawyers.
The company made no application for legal representation and should not have been exempt from doing so, Van Lawrence said.
Evidence submitted late by the company, which was allowed into the hearing was like a "litigation ambush" from a vastly more qualified and better-represented adversary, he said.
Meanwhile Sharla May, the director of tinyhousehub.co.nz, says interest in tiny house living has ballooned in New Zealand in recent years.
But she warned anyone thinking of getting involved – either as a tiny house owner or a landowner - to do their homework first.
New Zealand currently had no clear guidelines and there were lots of grey areas and pitfalls for the uninitiated.
Three legislations were involved and various other council regulations to comply with – and those varied greatly between regions.
Insurance companies all had specific requirements too, May said.
There were countless risks for people to be left in the lurch with non-compliant structures they could not move or insure.
Disputes between tiny homeowners and landowners were also a risk.
Harcourts Cooper and Co Real Estate Limited were contacted but a spokeswoman said it would not be appropriate to comment on the application or the matter generally while it was still before the court.