How much money was awarded in case 4536693?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4536693?

The primary dispute was Smoke alarms. Related themes: Cleanliness, Healthy homes, Boarding House.

Where can I read the official tribunal order for case 4536693?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9296894-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4536693?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4536693?

The primary dispute was Smoke alarms. Related themes: Cleanliness, Healthy homes, Boarding House.

Where can I read the official tribunal order for case 4536693?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9296894-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4536693 — Smoke alarms

Q: What was Tenancy Tribunal case 4536693 about?

The tribunal order states: An application for suppression has been made in this case and the Tribunal

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Order

An application for suppression has been made in this case and the Tribunal orders suppression of the name and identifying details of the Respondent (including the tenancy address and the names of the respondent’s representatives).

The application is struck out for lack of jurisdiction.

This order amends the order made on 4 August 2023 in regard to the suppression order only.

Reasons

The applicant, his representative (Mr Dumee), and legal counsel for the respondent ([The landlord’s representative 1] – first hearing, [The landlord’s representative 2] – second hearing) attended telephone hearings on 10 May 2023 and 25 July 2023.

I issued a preliminary decision on 19 June 2023 and invited both parties to file further evidence or submissions in response to that.

This is the final decision and confirms my oral decision in the second hearing that the premises are excluded from the Residential Tenancies Act 1986 (“RTA”) because they are exempt student accommodation in terms of section 5B RTA.

The Tribunal has no jurisdiction to consider the application and it is struck out. Background

The applicant lives in one of about 26 “cottages” (the applicant’s word) at the tenancy address which together are known as [The premises]. The cottage he lives in (“cottage 21”) is occupied by 4 people, in 4 bedrooms, and contains shared bathroom, kitchen, and living areas.

[The premises] are situated on the main [City] campus of [Redacted] and are owned or operated by [The landlord/s].

The applicant and the respondent are parties to a contract pursuant to which the applicant is entitled to live at cottage 21 in exchange for the payment of accommodation fees and on certain other conditions.

Liam Awarua Jack Goldingham sent through a maintenance request to [The premises] administration team on 1 March 2023 advising that the hot water in the cottage was too hot and had burnt him. He followed this up over the next three weeks, as the issue had not been resolved, and filed this application on 27 March 2023. The application and key submissions

The application is for compensation for alleged failure by [The landlord/s] to maintain hot water at the cottage at a safe temperature and for failing to provide a written tenancy agreement.

The applicant says that the accommodation is a boarding house within the meaning of the RTA and that the rules applying to boarding houses apply to those who are exempt from tenant status, but still in need of a landlord, such as students in university accommodation.

The applicant also says that the exclusion from the RTA contained in section 5B RTA does not apply in this case because the University has failed to comply with its ongoing maintenance and building or health and safety obligations in s66I RTA.

[The landlord/s] submits that the RTA does not apply because the applicant lives in student accommodation specifically excluded from the Act by s5B RTA. Alternatively, it says that even if the RTA did apply, the applicant’s maintenance request was dealt with appropriately and the claim for compensation is excessive.

The hearings addressed only the issue of whether the Tenancy Tribunal has jurisdiction to consider the application. The law that applies

The Residential Tenancies Act 1986 (RTA) applies to every tenancy for residential purposes except if the Act is specifically excluded because of one of the circumstances listed in section 5 RTA; see section 4 RTA.

I am satisfied that this is a tenancy for residential purposes because the applicant pays rent, or fees, and in exchange has the right to occupy the premises at cottage 21. See the definitions of “tenancy” and “rent” in s2 RTA.

If one of the section 5 exclusions applies, then it is the whole Act that is excluded. This is made clear by the words at the beginning of s5(1) RTA which say: “This Act shall not apply in the following cases:”

For this reason, I do not agree with the applicant’s submission that the boarding house provisions in Part 2A RTA apply even where the Act is excluded under s5 RTA.

Section 5(1)(h)(ii) says that the Act does not apply where “the premises are used to provide accommodation to students ... in accordance with the requirements of section 5B”.

The relevant parts of section 5B RTA say: 5B Exempt student accommodation (1) For the purposes of section 5(1)(h)(ii), this Act does not apply to premises if— (a) the premises are used to provide accommodation exclusively for students of 1 or more tertiary education providers; and (b) the premises are owned or operated by a person (an accommodation provider) who is— (i) a tertiary education provider; and ..... (c) the accommodation provider complies with subsections (2) to (4). (2) The accommodation provider must provide services to the students accommodated in the premises that are over and above the services that a landlord must provide under Part 2 or 2A. (3) The accommodation provider must have in place house rules that aim to create an environment that fosters personal development and encourages a sense of community and association with fellow students. (4) The accommodation provider must take all reasonable steps to ensure that prospective and current student tenants are made aware of, and have access to copies of, the house rules. ..... (6) In this section, tertiary education provider has the same meaning as in section 10(1) of the Education and Training Act 2020.

Parties to an excluded tenancy may agree in writing that all or part of the RTA will apply to a tenancy of residential premises; see s8 RTA.

The respondent has the task of proving that the Act is excluded; see s10 RTA which places this onus on the party making that argument.

The exemptions in section 5 are to be interpreted strictly; see Martin v Suite Places Limited (DC) Auckland CIV-2009-004-1671.

What are the issues to be decided?

After consideration, I define the jurisdictional issues to be decided as:- a. Have the parties agreed in writing that the RTA will apply to this tenancy? Section 8 RTA. b. Are the premises lived in by the applicant used to provide accommodation exclusively to students and are they owned or operated by a tertiary education provider? Section 5B(1) RTA. c. What are the services that a landlord must provide under Parts 2 and 2A of the RTA (“the required services”)? Section 5B(2) RTA. d. Has [The landlord/s] shown that it does provide the required services to students living in [The premises]? Section 5B(2) RTA. e. Does [The landlord/s] provide services that are over and above the required services? Section 5B(2) RTA. f. Does [The landlord/s] have in place house rules that aim to create an environment that fosters personal development and encourages a sense of community and association with fellow students? Section 5B(3) RTA. g. Did the accommodation provider take all reasonable steps to ensure that prospective and current student tenants are made aware of, and have access to copies of, the house rules? Section 5B(4) RTA. h. Does the Tribunal have jurisdiction to decide this application? A. Have the parties agreed in writing that the RTA will apply to this tenancy?

Neither party suggested that they have agreed in writing that the RTA will apply to this tenancy and no evidence was presented that shows that this is the case.

Section 8 RTA does not apply. B. Are these premises used to provide accommodation exclusively to students and are they owned or operated by a tertiary education provider? Section 5B(1) RTA.

[The landlord/s] is a tertiary education provider within the meaning given in section 10(1) of the Education and Training Act 2020. [The landlord/s] was established pursuant to [Redacted].

The premises are owned and operated by [The landlord/s].

The respondent confirms that [The premises] are available to be lived in only by students.

The applicant confirms that the four people living in the premises are all students attending the University.

Section 5B(1)(a) and (b)(i) are proven. C. What are the services that a landlord must provide under Parts 2 and 2A RTA? Section 5B(2) RTA.

The exemption will only apply if the accommodation provider provides services over and above the services that a landlord must provide under Part 2 or 2A of the RTA; s5B(2) RTA.

The word “services” is not defined in the RTA or used except in the context of utilities such as gas, electricity, and water (in s45(2) RTA). A landlord is not required to provide these services so this cannot be what is meant in s5B RTA.

Section 5B was inserted into the Act by the Residential Tenancies Amendment Bill 2010. The explanatory note to the Bill does not give any guidance as to what Parliament intended by the word “services”. 1

Parts 2 and 2A of the RTA contain the obligations, rights, and responsibilities of both landlords and tenants in boarding house tenancies (Part 2A) and all other tenancies (Part 2).

A review into student accommodation completed by Parliament’s Education and Workforce Select Committee in 2021, concluded that:- a. Providers of student accommodation must meet the requirements of the Residential Tenancies Act, must set house rules, and must provide extra services such as cleaning, catering, and assistance with tuition; 2 and 1 “... new section 5B, which sets out the requirements to be met by tertiary student accommodation that is exempt from the Act. .... The services provided to the students must be over and above the services required under the Act.” Explanatory Note to the Residential Tenancies Amendment Bill 2010: 34-1. 2 Final report (Inquiry into student accommodation)), Education and Workforce Committee, May 2021 at page 6. b. Rather than the Tenancy Tribunal monitoring student accommodation, a better approach was to establish a “strong and effective, specialised dispute resolution process”. 3

The Committee’s conclusion supports a view that the reason for the exemption from the RTA in s5B is not so that accommodation providers can avoid complying with the RTA requirements but, rather, so that where additional services specific to the needs of students living in communal-style accommodation are also provided, that any dispute or complaint arising from the accommodation be overseen and determined by a specialist dispute resolution provider established for that purpose.

In None v None [2021] NZTT [Event location suppressed] 4293734, the Adjudicator concluded that although there was no definition of “services” in the RTA, it was reasonable to infer that: “the usual services that a landlord must provide are covered under section 45 and 45B RTA which relates to (in general terms) an obligation to make sure [sic] the property is in a reasonable condition and meets all relevant building, health and safety standards.” 4

I agree with this.

In my view, a provider of student accommodation should also provide smoke alarms, secure locks and keys, and the types of services required by the Healthy Homes Standards. These are all services or obligations of a landlord in Parts 2 and 2A RTA. 5

In essence, a student living in student accommodation should receive more services than a tenant under the RTA. They should not be worse off. D. Has the University shown that it does provide the required services to the applicant and the other students living in [The premises]? Section 5B(2) RTA.

An accommodation provider that contends that s5B applies, must give enough evidence for the Tribunal to be satisfied that this is probably the case.

The student accommodation contract on its own does not do this. The contract is contained within an email sent to a resident student. 6 The email incorporates the ‘[Landlord] Halls of Residence Rules and Regulations [City]’, parts of which refer to services provided by the University. 3 Final report (Inquiry into student accommodation)), Education and Workforce Committee, May 2021 at pages 13-15. 4 None v None [2021] NZTT [Event location suppressed] 4293734 at paragraph 27. 5 See sections 45 and 46 Residential Tenancies Act 1986. 6 The “Halls of Residence Online Contract Acceptance”.

The email contract also advises students that the University is a signatory to the ‘Education (Pastoral Care of Tertiary and International Learners) Code of Practice 2021’ (“the Pastoral Care Code”). The Pastoral Care Code is published by the New Zealand Qualifications Authority (NZQA) and specifically states that it applies to student accommodation that is exempt under s5B RTA. 7

The Pastoral Care Code requires providers to ensure that student accommodation facilities and services are “maintained to a standard sufficient to support residents’ wellbeing and safety and educational success” and are “secure, clean, dry, warm, comfortable”. 8

In response to my first order, the University has provided additional evidence sufficient for me to now be satisfied that it does provide services equivalent to those required of landlords in the RTA.

Specifically, [The premises]:- a. are maintained and cleaned by an in-house property services division, b. all have serviced smoke alarms, c. have heat pumps, insulation, extractor fans in kitchens and bathrooms and a DVS ventilation system, d. have drainage systems that are regularly cleaned and inspected, e. have a monitored and secure door locks and keys system.

I note that the above information may not be readily available to students. It may be helpful for the University to consider adapting its accommodation contract information to make it clearer that it provides the services that a landlord must provide under Parts 2 and 2A RTA. E. Does the University provide services that are over and above the services provided by a landlord under Parts 2 and 2A RTA? Section 5B(2) RTA.

I am satisfied that the [Landlord/s] provides services to the students living in [The premises] that are over and above what is required by Parts 2 and 2A of the RTA.

Specifically:- a. As a signatory to the Pastoral Care Code, the University is required to proactively monitor residents’ welfare and wellbeing. 9 7 Clause 3(3)(b) Education (Pastoral Care of Tertiary and International Learners) Code of Practice 2021. 8 The Pastoral Care Code, at Outcome 7, clause 32 and 33. 9 The Pastoral Care Code at Outcome 5. b. Both parties confirmed that one of the ways that additional welfare services are provided is that dedicated University staff (a manager and senior students known as RL’s or Residential Leaders) live on-site and are available to assist 24 hours a day with any practical or welfare issues. Proactive wellbeing checks are undertaken (such as electronically monitoring access card usage and developing care plans for students who may be at higher risk). c. Additional social services such as social events and a recreation room are available. d. There is an internal complaints and escalation process available to accommodation residents. I refer to this further below.

The above welfare, social, and complaints services are not required of landlords under Part 2 or 2A of the RTA.

I am satisfied that s5B(2) RTA applies. F. Does the University have in place house rules that aim to create an environment that fosters personal development and encourages a sense of community and association with fellow students? Section 5B(3) RTA.

The third part of the exemption is that the University must have in place house rules which apply to [The premises].

The University advises that these are contained in Halls of Residence Rules and Regulations and are part of the contract agreement between the University and each student resident, including the applicant.

These specifically state that they are “in place to support the safety and wellbeing of students in student accommodation” 10 and contain rules guiding behaviour (such as noise, alcohol use, cleanliness) and provide for the welfare checks by accommodation staff.

I consider that these rules do aim to create an environment that fosters personal development and encourage a sense of community and association with fellow students.

I find that subsection 5B(3) is complied with. 10 See first sentence under heading “Rules and Regulations”, page 1 of the Rules and Regulations. G. Did the accommodation provider take all reasonable steps to ensure that prospective and current student tenants are made aware of, and have access to copies of, the house rules?

The Rules and Regulations are specifically referred to in the accommodation contract. The University advises that copies are also available at each of the cottages. The University website refers to these as part of information about accommodation options available.

I am satisfied that the University has taken all reasonable steps to ensure that prospective and current student tenants are made aware of, and have access to copies of, the Rules and Regulations – which are the house rules.

Section 5B(4) is complied with. H. Does the Tribunal have jurisdiction to decide this application?

My decision is that the premises lived in by the applicant are excluded from the RTA by s5B RTA. This means that I have no power to consider the application made.

I have made a declaration to this effect and striking out the application.

What remedies does a student living in excluded student accommodation have?

The applicant asked an important question in the first hearing, which was: “If a student cannot access the Tenancy Tribunal, where can we go?”

The answer to this question is that there is an internal, University complaints process, required under the Pastoral Care Code, which the applicant can access. There is a link to the complaints process on the University website.

If the University complaints process does not resolve the issue, a student may complain to the New Zealand Qualifications Authority. The University also provides this information and a link on the same webpage.

In addition, a Dispute Resolution Scheme (“DRS”) for domestic learners has now been established pursuant to section 536 of the Education and Training Act 2020. This is legislated for in the Education (Domestic Tertiary Student Contract Dispute Resolution Scheme) Rules 2021 and includes access to financial and other remedies in section 25.

The DRS came into effect on 1 January 2022 and an independent services provider has been appointed to deliver the services – see ‘Tertiary Education Dispute Resolution’ (“TEDR”) at www.tedr.org.nz

The University has invited the applicant to raise his concerns about maintenance and a written contract through the internal complaints process.

There is some uncertainty about the meaning of previous communication between the parties about this. If progress cannot be made, I suggest that Mr Goldingham contact either TEDR or NZQA and seek their assistance. Suppression of names

The applicant does not seek suppression of its name from the published order.

The respondent has applied for suppression of its name and any details of the tenancy that may identify it.

The Tribunal must order suppression of name where a party has been wholly or substantially successful in the application; s95A(1) RTA. The respondent has been successful in contending that the premises are excluded from the RTA.

There are no public interest or conduct reasons for refusing suppression. It is the subject matter and not the identity of the respondent that may be of interest.