What was Tenancy Tribunal case 4521952 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4521952?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4521952?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4521952?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9354090-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4521952 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4521952?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4521952?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4521952?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9354090-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4521952 — Boarding House

Order

The Tribunal orders suppression of the parties’ names and identifying details.
The Tribunal does not have jurisdiction.
The tenant’s application is dismissed.

Reasons

Both parties attended the hearing.
The tenant has applied for refund of the bond pursuant to section 22B Residential Tenancies Act 1986 (“RTA”).
The landlord has made submissions setting out his claim for compensation from the tenant but has not filed an application with the Tribunal.
As indicated at the hearing, this means that the Tribunal must refund the bond to the tenant.
However, before considering the tenant’s application for refund of the bond, the Tribunal must first determine whether it has jurisdiction. Jurisdiction
The parties agreed on the following facts: a. The parties entered into what was described as a “Flat/House-sharing agreement” dated 23 December 2020. It refers to the landlord as the Head Tenant and the tenant as the flatmate. b. The landlord put an advertisement on Facebook seeking “a flatmate... for a very large spacious room, approximately a 70 square meter room down stairs in large country house. Has own separate entrance... Comes with own bathroom and toilet upstairs. $280 per week includes power and internet. 4 weeks bond required. Bed and some minor furniture available as well including fridge if required.” c. The landlord estimates the total area of the house at 280m2. The room intended for occupation (“the premises”’) therefore made up approximately one quarter of the total area of the house property. d. The rest of the house was occupied by the landlord. The landlord explained that his partner came to stay from time to time until she suffered an accident when she came to live permanently in the property. In addition, the landlord’s partner’s son came to stay from time to time and had his own bedroom. e. While it was intended to make the premises self-contained, it was not self- contained at any time during the tenancy. f. The tenant was entitled to access all of the property except the other bedrooms. This included the bathroom, kitchen and laundry facilities. g. The tenant used a separate door to access the premises. h. The tenant had keys to access the house property. i. The premises were used by the tenant as a living and sleeping area. She also prepared her meals in the premises and did not use the kitchen. j. The tenant used the bathroom facilities upstairs and the laundry. k. The rent included the tenant’s use of power and the internet. The premises did not have a separate power meter or internet connection. l. The landlord explained that he was looking for a flatmate and not a tenant and that his advertisement and the agreement signed by both parties made this clear.
The fact that the parties chose to label their relationship a “flat/house sharing agreement” is not determinative of the issue. Nor is the fact that the landlord believed he was looking for a flatmate and not a tenant. The issue is whether or not the relationship was, in substance, a flat sharing agreement, despite the label the parties have attached to the agreement.
The word “flatmate” does not in itself define the nature of the legal relationship between a flatmate and a landlord. The word is no more than a convenient label reflecting a functional reality and it remains necessary to ascertain the legal nature of the relationship on the basis of the evidence.
The RTA applies to every tenancy for residential purposes except as specifically excluded under section 5 RTA. A “tenancy” means the right to occupy “residential premises” in consideration for rent. Residential premises are any premises used or intended for occupation as a place of residence. As this room was occupied by the tenant as her place of residence and rent was paid to the landlord, this was a residential tenancy.
It remains to consider whether the arrangement was excluded by the provisions of section 5(1)(n) RTA. This provides that the RTA shall 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:”
Section 10 RTA provides that where a party to proceedings argues that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
Premises that are let out self-contained with exclusive possession are generally subject to the RTA (Prasad v Chief Executive of the Ministry of Social Development CA 119-04, 22 December 2005).
In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room. The occupants had no right of entry to the rest of the house.
The High Court said the critical issue was whether the ‘premises’ referred to in section 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
The self-contained nature of the granny flat was the decisive factor in Harding.
In the District Court decision of Musson v Dobrisek DC Lower Hutt CIV-2006- 032-36, 5 May 2006 the Court said “principally” in section 5(1)(n) RTA referred to the main use of the premises. The question to be asked was whether the principal use of the premises was as a place of residence by the landlord (paragraph 39): “I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section [5(1)(n)] appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed-sitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord’s family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described”.
The Tribunal’s decision 4209883 of 18 February 2022 contains a useful analysis and comparison of recent Tribunal decisions regarding the application of section 5(1)(n) RTA. Consistent themes running through the foregoing cases appear to be: a. The extent of any sharing of living facilities (such as cooking, bathroom, sitting room and laundry). b. The extent of any free and unimpeded access by the tenant to premises occupied mainly by the landlord. c. The nature of the tenant’s area and whether it is fully or partly self-contained and whether it is exclusive.
In this case: a. The premises were not self-contained. The tenant used the bathroom and laundry facilities in the upstairs portion of the house as there were none provided in the premises. b. The premises could not be occupied without using the shared facilities with the landlord and his family. c. The balance of the house property continued to be used by the landlord as his principal place of residence. d. The landlord and his family retained for their exclusive use four out of five bedrooms. e. The kitchen and living areas were available for the use of the tenant. f. The rental covered all utilities including power and internet. There was no separate power meter or internet connection for the premises. g. By having keys to the external doors of the rest of the house property, the tenant had access to the rest of the house property, excluding the landlord’s and his family’s bedrooms. Decision
Having considered the factors above, the landlord has persuaded the Tribunal that it does not have any jurisdiction to determine the claim. The exception to the RTA under section 5(1)(n) applies. Premises now self-contained
I note that the landlord advised during the hearing that the premises were now fully self-contained and had been let to another person. With this significant alteration to the nature of the premises, bearing in mind the reasoning above and other decisions of the Tribunal, it seems highly likely that the premises would now be subject to the jurisdiction of the RTA. It would be prudent for the landlord to ensure that he has complied with all of his obligations as a landlord under the act. Suppression
Section 95A RTA provides that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
This application has been dismissed for lack of jurisdiction. The naming of the parties therefore has no public interest and suppression of the parties’ details is ordered.

Tenancy Tribunal case 4521952 — Boarding House

At a glance

Claims & awards

Tenancy Tribunal case 4521952 — Boarding House

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions