What was the outcome of Tenancy Tribunal case 4460964?

The tribunal order states: No application for suppression has been made in this case and no suppression orders

How much money was awarded in case 4460964?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4460964?

The primary dispute was Rent arrears. Related themes: Property damage, Cleanliness.

Where can I read the official tribunal order for case 4460964?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9387065-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4460964?

The tribunal order states: No application for suppression has been made in this case and no suppression orders

How much money was awarded in case 4460964?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4460964?

The primary dispute was Rent arrears. Related themes: Property damage, Cleanliness.

Where can I read the official tribunal order for case 4460964?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9387065-Tenancy_Tribunal_Order.pdf.

18 Sanders Street, Arapuni, Putaruru 3415 Tenancy Tribunal Case 4460964 — Rent arrears

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Ashleigh Cartmell and Dale Nielsen to pay Hannah Summers $784.93 immediately, calculated as follows:
Bond Services is to release the bond of $2,200.00 to Hannah Summer immediately.

Reasons

The Landlord attended this first face-to-face hearing. The Tenant did not attend.
Both parties attended the previous telephone hearings. DescriptionLandlordTenant

LANDLORD

Rent Arrears to 2 December 2022$2,542.86 Replacement Gas Bottle$99.00 Commercial Carpet Cleaning$220.00 Rubbish Removal$11.60 Replacement Chattels (para. 29)$500.00 Carpet Replacement (Excess)$1,000.00 Pelmet Replacement (Ranchslider)$411.47 Sub-Total$4,784.93

TENANT

Prohibited Transaction (Flat-Sharing Agreement)$1,800.00 Total award$2,984.93 Minus Bond-$2,200.00 Tenant to Pay$784.93

Does the Tribunal have jurisdiction to hear the claim?

The Tenant says it was a Tenancy and claims the Landlord did not comply with its obligations under the Act.
The Landlord also relies on it being a Tenancy to establish its claims.
Section 77(1) of the Act says the Tribunal has jurisdiction to determine disputes which relate to any tenancy to which the Act applies.
Section 5(1) of the Act sets out the kind of cases where the Act does not apply.
The Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions.
Section 5(1)(n) of the Act says the Act does not apply: ...where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord's or owner's family:
This case concerns a flatting arrangement. The parties’ rights and obligations are recorded in a contract which is entitled 'Flat/house - sharing agreement' (the Agreement).
The Agreement says it is not governed by the Residential Tenancies Act 1986 (the Act), and “In the event of any dispute... the dispute will be determined by the Disputes Tribunal.” The Tenant signed the Agreement on 30/09/2022.
Use of the word “flatmate” does not in itself define the nature of the legal relationship between the parties. It remains necessary to ascertain the legal nature of the relationship based on the evidence. 1 What are the ‘premises’?
Premises means “[a] house or building with its grounds etc. Also (a part of) a building housing a business etc.” 2
Section 2 of the Act defines residential premises as follows: ...any premises used or intended for occupation by any person as a place of residence and includes any part of any premises.
Separate and distinct premises may be contained within another premises. This was confirmed by the High Court in Kahi v Lucas. 3
Consequently, residential premises include any part of any premises used or intended for occupation ... as a place of residence.
In Harding v Schellevis 4 the tenants did not have a right to occupy certain areas of a dwelling used exclusively by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other’s dwelling, other than with consent. 1 Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36. 2 Kahi v Lucas HC Auckland HC 81/96, 23 September 1996 at page 9. 3 Ibid. 4 Harding v Schellevis, Tan & Caroto [2021] NZHC 1265.
The High Court states at [40]: 5 the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant...
In this situation, the property consists of a three-bedroom house. The Landlord lives in a separate, self-contained unit on the same property but outside the main house. Both the Landlord and the Tenant share laundry facilities located inside the main house.
I have concluded the arrangement is a tenancy for the following reasons:
1. The choice of title for the agreement, “Flat/house-sharing Agreement,” seeks to communicate a casual, shared living scenario. However, upon delving into its terms, the content is resoundingly characteristic of traditional tenancy agreements.
2. Detailed rent provisions, bond terms, responsibilities concerning utilities and bills, defined notice periods, and clauses on property maintenance suggest a deeper, structured relationship than the title implies.
3. The commitment to file the bond with Tenancy Bond Services further anchors the agreement in the domain of formal tenancy arrangements. Such filings are quintessential tenancy practices, not commonly associated with informal living arrangements.
4. The delineated rights, restrictions, and obligations for the tenant, including areas like pet ownership, smoking rules, and bill payments, are all redolent of standard tenancy contracts. These elements indicate a relationship that goes beyond mere casual cohabitation.
5. The communications between the parties, notably mentions of rent, bond, property maintenance, and references to external agencies like WINZ, signify a landlord- tenant relationship. These conversations go beyond what would be typical of mere flatmates.
5.1. The Landlord specifically notes, "I've had 2750 paid into my account," broken down into separate payments - one for the bond and another indicative of rent. This transactional dialogue highlights the standard monetary exchanges inherent in landlord-tenant relationships.
5.2. The way in which The Tenant and The Landlord converse, focusing on rental specifics, deposits, and the settlement of related finances, aligns well with typical tenancy dialogues. Such interactions are not commonly seen in relationships that are purely casual or devoid of the formal undertones of tenancy, but this does not rule out a flat-sharing arrangement necessarily
6. The terms “premises” is comprehensive, encompassing the premise’s usage or intended usage for residence. The three-bedroom house, being the main structure and the primary residence for the Tenant, clearly falls within this definition. 5 Ibid. at [40].
7. Moreover, in this case, the separate dwellings (the main house and the Landlord’s self-contained unit), notwithstanding the sharing of laundry facilities, support a tenancy, as opposed to flat sharing, characterisation.
8. While the parties had an agreement stating that it was not governed by the Residential Tenancies Act 1986, the actual nature of their relationship, as evidenced by their actions and communications, takes precedence over a written title or classification.
9. The Act is designed to broadly interpret scenarios where the Tribunal would have jurisdiction and to strictly interpret exceptions. The facts of this case don't fall neatly into the exceptions provided in Section 5(1)(n) because the Landlord does not principally reside in the main three-bedroom house but in a separate unit on the property.
10. The Landlord’s occasional usage of the laundry facilities does not sufficiently satisfy the criterion in s 5(1)(n) of the Act. Though she may have sporadic access, this does not negate the overriding tenancy nature of their relationship. The mere incidental use of part of the premises does not convert the essential characteristic of the tenancy.
11. While the Flat/house-sharing Agreement overtly seeks to exclude the Act, this endeavour is ineffective because the substance of the relationship mirrors a tenancy. The provisions within the Act empower parties to contract into it, even if their written agreement attempts to exclude its application, which the parties have done in this case by virtue of their communications.
After a thorough examination of the evidence, communications, statutory provisions, and the specific terms of the Flat/house-sharing Agreement, it is clear the arrangement between the parties embodies the essence of a tenancy. The intent behind their communications, combined with the tenor of their agreement, paints a clear picture of a landlord-tenant dynamic.
While the Agreement is an attempt to frame their relationship as a casual flat-sharing situation, the substance of their arrangement, grounded in both their interactions and their agreement’s terms, suggests otherwise. It is an established legal principle that parties cannot merely contract out of statutory rights and responsibilities when the substantive nature of their relationship dictates such statutory provisions’ application. Landlord’s claim:
The Landlord claims as follows:
Rent arrears: $2,542.86 up to 2 December 2022.
Utilities:
1.Power Bill 1 $222.74
2.Power Bill 2 $193.93
Carpet issues:
1.Cleaning cost: $220.00
Stain could not be removed by commercial carpet cleaning.
Two damage events leading to the claim for a new carpet:
1.Hallway
2.Lounge and three bedrooms
Rubbish removal: $11.60.
Pelmet repair: Damaged pelmet in sliding door: $411.47
Wall damages:
1.Extensive damage across multiple walls. Three walls costing $600.00.
2.Hinge issues: Every hinge only had one screw with three or four screws missing.
Damaged/lost items:
1.Vacuum cleaner: $165.00.
2.Gas cooker: $199.99.
3.Gas bottle: $99.00.
4.Smoke alarms (all taken): $36.00.

How much is owed for rent and utilities?

The tenancy ended on 2 December 2023. The Landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy: $2,542.86
While I'm not entirely persuaded that the power usage can be solely attributed to the Tenant as per s 39(3), given my authority under s 85, I am granting $200 to the Landlord, as it appears likely the Tenant contributed to the power consumption.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit: s 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The carpets required commercial cleaning due to oil marks and animal urine. I approve the Landlord’s carpet cleaning claim of $220.00.
I approve the Landlord’s claim for the cost of removing the Tenant’s rubbish: $11.60.
The tenant did not return the keys.
The following chattels were missing at the end of the tenancy:
1.Vacuum cleaner: $165.00 (new)
2.Gas cooker: $200.00 (new)
3.Gas bottle: $99.00.
4.Smoke alarms (all taken): $36.00.
I approve the Landlord’s cost claim for replacement of these: $500.00

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The following damage was caused during the tenancy:
1. Animal urine and oil stains could not be removed by commercial carpet cleaning, resulting in two damage events leading to the claim for a new carpet in the hallway, lounge, and three bedrooms. The Landlord’s photographs prove the damage events. The damage was more than fair wear and tear. I approve the Landlord’s insurance excesses for both events: $1000.00.
2. Damaged pelmet in sliding door. I have the Landlord’s photographs and evidence which establish its claim. The damage is more the fair wear and tear and I approve the amount of $411.47. (I have not received and invoice, but the Landlord confirms the pelmet has been replaced.)
3. Wall damages:
3.1.Extensive damage across multiple walls. Three walls costing $600.00.
3.2.The Landlord has provided photographs which prove damage. The damage is more than fair wear and tear.
3.3.I have not received a paid invoice for this and do not award the claim.
I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Tenant’s claims:
The Applicants claim the landlord has breached their obligations under section 60AA.
Under s 60AA of the Residential Tenancies Act 1986 a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
The Tenant claims the Landlord gave invalid notice to end the tenancy.
While The Landlord suggests this was a flat/house sharing agreement and not a standard tenancy agreement, the main distinction is that the Tenancy Act 1986 does not cover the former. I have found this was a tenancy, not a flat-sharing arrangement. The Act applies.
The Landlord claims she provided a 28-day notice (which she says is generous considering a 14-day notice should have sufficed). However, the 28-day notice does not comply with the requirements of the Act.
Section 60AA specifically addresses scenarios where a landlord acts in bad faith by attempting to terminate a tenancy without proper grounds as prescribed by the Act.
In layman’s terms, s 60AA ensures that landlords cannot just evict tenants without a valid reason as stipulated in the Act. If a landlord knowingly provides notice to terminate the tenancy (or even makes an application to the Tribunal) when they are aware they do not have the right to do so, they are committing an unlawful act.
If The Landlord provided the 28-day notice to terminate the tenancy without valid grounds as prescribed by the Act and knowing she was not entitled to do so, then according to Section 60AA, she would have committed an unlawful act.
However, it is important to note that the keyword here is “knowing.”
The Landlord genuinely believed she had the right to issue the termination notice. I am of the view she believed (mistakenly) that she had a valid reason or that the 28-day notice was appropriate based on her interpretation of the tenants’ behaviour and activities. The Tenant was not paying rent and there had been loud arguing and disturbances at the property.
I consider the Landlord did not “knowingly” violate the Act.

Was the transaction a prohibited transaction?

Section 137 of the Act addresses “Prohibited transactions”. Essentially, this section aims to prevent parties from sidestepping the rights and obligations set out in the Act by entering into arrangements that might be structured to appear different from tenancies but are effectively tenancies in nature.
Subsection (1): This subsection essentially states that no person can enter into any agreement or contract that either directly or indirectly contravenes the Act. Additionally, no one can create an arrangement designed to evade the Act's provisions.
Subsection (2): It's unlawful to require someone to enter into an agreement or contract that violates subsection (1).
Subsection (3): If any provision of an agreement, contract, or arrangement contravenes subsection (1), that specific provision is considered null and void.
Subsection (4): If someone pays money under a prohibited agreement, they can recover that money.
If the "flat sharing agreement" was a veiled attempt to structure what was essentially a tenancy, such that it would avoid the rights and responsibilities set out in the Act, then it might be deemed as contravening s 137.
If, in essence, the actual arrangement was a tenancy, but the parties labelled it or structured it as something else to bypass the Act, this could be seen as an attempt to “defeat, evade, or prevent the operation” of the Act.
If it is determined that the flat sharing agreement was such a prohibited transaction, several consequences could ensue:
1. Provisions of the "flat sharing agreement" that contravene the Act would be void.
2. Money or value given under the pretence of the flat sharing agreement might be recoverable.
3. There might be potential penalties or legal consequences for participating in the prohibited transaction.
I have had regard to the findings above and have more closely examined the parties text messages.
Throughout the conversation, there are multiple references to rent payments, bond payments, and other monetary transactions consistent with a landlord-tenant relationship. Terms like "bond refund", "rent payment", "advanced pay", and specific amounts being transferred for the purpose of covering rent highlight this relationship.
The exchanges discuss issues such as mowing the lawn, maintenance, and other property- related concerns. While these can be seen in a flat sharing agreement, in the context of this conversation, they are consistent with duties often borne by tenants.
There is talk about the electricity being in someone’s name, the inclusion of appliances in the shared space, and other amenities provided, hinting at the division of responsibilities you might find in a rental situation.
Ms Summers often informs or asks Ms Cartmell about cars parked in the driveway or items left on the property. This dynamic suggests that Hannah has a dominant role in managing the property, which is characteristic of a landlord.
The way Ms Cartmell communicates, asking for permission or informing Ms Summers about certain issues, aligns more with a tenant communicating with a landlord rather than a flatmate on equal terms.
The mention of cameras and security suggests a certain level of surveillance or property management that might be more typical of a landlord-tenant relationship.
There is talk of adjusting the amount and timing of rent payments.
From the text messages, there is a recurring theme of one party acting with authority, setting terms, and receiving payments. The other party seems to act as a passive recipient of these terms and conditions.
Given these observations, the text messages provide strong evidence that the “flat sharing agreement” was essentially a veiled tenancy agreement.
The payment of rent and a bond, combined with an eviction notice and the general power dynamic observed, all point towards a landlord-tenant relationship.
If the agreement was constructed to intentionally bypass the rights and responsibilities outlined in the Act, it may be in violation of the Act’s provisions against prohibited transactions.
Many of its terms purport to defeat, evade or prevent the operation of the act, which renders them ‘prohibited transactions’ pursuant to s 137 RTA.
I find the Landlord has committed an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00: s 137(2)
I am required to have regard to s 109 of the Act when deciding whether to award exemplary damages:
1. I have already established that the Landlord committed the unlawful act intentionally by structuring what was essentially a tenancy as a flat sharing agreement.
2. I am not persuaded the Landlord sought to bypass regulations to gain more control over the property and its residents.
3. There is no concrete evidence to suggest the landlord was trying to avoid legal requirements; e.g., KiwiSaver withdrawal prohibition.
4. The Landlord’s evidence is that it did not want to be a Landlord and asked Tenancy Services what other options it had, which is how the Landlord found out about the flat-sharing arrangement.
5. I find it more likely that not the Landlord sought to avoid certain responsibilities, rights, or obligations under the Act.
Effect of the unlawful act (s 109(b)): The Tenant was they deprived of their rights due to the structured agreement. For example, if they had issues with the property, their position was unclear. There was no requirement to give notice as per s 51 of the Act. The Tenant’s rent was not discounted to account for the compromise of its rights.
Interests of the landlord or the tenant against whom the unlawful act was committed (s 109(c)): The Tenant was disadvantaged in the end because the correct termination procedures under the Act were not utilised (inadequate notice period and invalid grounds), and the Landlord purportedly trespassed the Tenant from the property for not paying rent, and disturbances.
The public interest (s 109(d)): The broader societal implications are crucial. Awarding exemplary damages not only provides redress for the affected tenant but also serves as a deterrent for other landlords. If such practices were to become commonplace, it could undermine the purpose and provisions of the Act.
I have awarded the Tenant $1,800.00 considering the impact of the prohibited transaction on their rights, the fact their tenancy was terminated invalidly. While the Tenant had failed to pay rent, there are separate provisions under the Act to deal with non-payment of rent, leading to termination. There are also provisions dealing with anti-social behaviour. I also consider I could have required the Landlord to forfeit to the Tenant all or part of the rent for the duration of the tenancy.

Tenancy Tribunal case 4460964 — Rent arrears at 18 Sanders Street, Arapuni, Putaruru 3415

Tenancy Tribunal case 4460964 — Rent arrears at 18 Sanders Street, Arapuni, Putaruru 3415

Order

Reasons

LANDLORD

TENANT

Does the Tribunal have jurisdiction to hear the claim?

How much is owed for rent and utilities?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Was the transaction a prohibited transaction?

Order

Reasons

LANDLORD

TENANT

Does the Tribunal have jurisdiction to hear the claim?

How much is owed for rent and utilities?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Was the transaction a prohibited transaction?