What was Tenancy Tribunal case 4543930 about?

The tribunal order states: The application is dismissed for want of jurisdiction

How much money was awarded in case 4543930?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4543930?

The primary dispute was Healthy homes. Related themes: Boarding House.

Where can I read the official tribunal order for case 4543930?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9639039-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4543930 about?

The tribunal order states: The application is dismissed for want of jurisdiction

How much money was awarded in case 4543930?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4543930?

The primary dispute was Healthy homes. Related themes: Boarding House.

Where can I read the official tribunal order for case 4543930?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9639039-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4543930 — Healthy homes

Order

The application is dismissed for want of jurisdiction

Reasons

[The tenant/s] appeared represented by [The tenant’s representative]. [The landlord/s] appeared and were represented by [The landlord’s representative].
The issue for this hearing is whether the Tribunal has jurisdiction to consider the claims filed by the applicant.
On 08 June 2022, the applicant, as trustee of a trust, in which they are also beneficiary, entered into a tenancy agreement, thus becoming a tenant of the trustee. The property was later sold at a mortgagee sale to the respondent. The applicant claims that having purchased the property subject to a tenancy agreement in which they are the tenant, the respondent has then acted contrary to the provisions of the Residential Tenancies Act 1986 (The “Act”).
The applicant states that the property, which was made up of a house and section, and a vacant section, was purchased by a family trust in 2018. The trustees comprising of the applicant and another. The property was initially offered for rent. In 2021, the trustees sold the vacant section and cleared the mortgage. The trustees then used the property, and another owned by the applicant, to raise a business loan. On or around 10 March 2022, the trustees failed to meet their loan obligations. On 09 April 2022, the previous tenant vacated the property. On 14 April 2022, the applicant took up residence at the property.
On 04 May 2022, a notice was issued under the Property Law Act 1952 requiring the trustees to remedy arrears by 04 July 2022 or face a mortgagee sale. The applicant states that on or about 07 June 2022 they became sole trustee. On 08 June 2022, to protect their interest in the property, the applicant, as trustee, entered into a tenancy agreement whereupon they became the tenant.
The resolution granting the tenancy is headed [The Family Trust/s] “Resolution,” and is dated 08 June 2022: Resolved: that the Trustees have considered the needs of the beneficiaries and resolve to rent the property at [Tenancy address suppressed] to (the applicant) for a discounted rent of $10.00 per week, receipt for which is acknowledged, for a fixed term ending on 30 June 2025 after which the needs of the beneficiaries will be reconsidered. The trust will pay for lawn mowing.
The document is signed by the applicant / trustee only.
On 27 July 2022, the applicant was granted an interim injunction delaying the mortgagee sale of the property. The judgement granting the interim injunction states that the matter was to be set down before a duty Judge on the week commencing 01 August 2022 to consider whether the interim injunction should be sustained. On the material before the Tribunal, it appears that the injunction lapsed. On 02 February 2023 a mortgagee auction proceeded and on 10 February 2023, the respondent purchased the property.
The respondent challenges the jurisdiction of the Tribunal, advancing two grounds excluding the tenancy from the provisions of the Act. Firstly, that the property continued to be used principally as a place of residence by the landlord or owner of the property or by any member of the landlords or owner’s family, and secondly, that the tenant is also the landlord or one of the landlords by virtue of a lease back agreement.
Section 77(1) of the Act provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 of the Act provides that its provisions apply to all residential tenancies unless specifically excluded.
Section 2(1) of the Act defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises,’ ‘tenancy,’ and ‘tenancy agreement’ are defined as: Residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful Tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy Tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement
Section 5 of the Act sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 of the Act provides that, where a party to proceedings contends 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.
Section 5 (1)(n) states that the Act 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 5(1)(p) states that the Act shall not apply where any of the tenants is also the landlord or one of the landlords by virtue of an arrangement of a kind commonly known as a cross lease or lease back arrangement.
Section 8 of the Act provides that, where the Act is excluded by sections 5 to 7, if the premises are used for residential purposes, the parties can agree in writing [ my emphasis] at all or some of the provisions of the Act will apply.
In Featherston v Barfoot and Thompson Limited [2015] NZDC 12810, the parties to a sale and purchase agreement signed a standard form residential tenancy agreement which included a statement that the Act applied and that the bond would be lodged with the Bond Centre. Although the tenancy was theoretically covered by the exclusion in s 5(1)(o) of the Act, the District Court concluded that the parties had contracted back into the Act. The Court rejected the argument that section 8 required a provision written into the agreement specifically referring to the section.
Section 8 of the Act does not contain any time limit on when the parties may contract back into the Act. The parties may agree at a later stage to take advantage of its provisions, even after the tenancy has ended (see Gaia v Culling and Signal [1999] NZTT, Palmerston North, TT 121/99).
The Respondent has referred to Tribunal to the case of Thony Properties Ltd v Eyenta Constance Livingstone [2023] NZTT 4461922. While acknowledging that each case would be determined on its facts, the respondent stated at paragraph [8] - [10] the Tribunal had provided useful guidance on determining the application of the exclusion in 5(1)(n).
The applicant submits that Thony Properties v Livingstone concerned the lifting of the corporate veil and is unhelpful when considering the position of parties under a trust. The applicant submits that a company structure lacks the independence of a trust, and trustees, unlike directors and shareholders, are entirely “divorced” from the beneficiaries of the trust. The applicant submitted that trustees must exercise their own powers and could never be a “puppet,” deferring to the wants of the beneficiary because to do so would run contrary to trust law. The applicant questions whether jurisdiction would have been in issue had the tenancy been granted by another trustee. The applicant submitted that this demonstrates that the landlord, owner, trustee, and tenant are entities that should remain separate.
I accept the applicants’ submissions that any decision made concerning jurisdiction should be clear.
In Adams v Massey University, Palmerston North TT43/94, 10 October 1994, the Court stated “At least it can be said the preamble makes it clear that the Act was to encompass the rights and obligations of all persons entering into agreements relating to the occupation of residential properties. S 5 of the Act provides the only exemptions from control under the Act and the “fair, large and liberal construction and interpretation” to give the Act its “true intent and meaning” must require the exemptions to be interpreted strictly, not liberally”.
This was the approach adopted by the Tribunal in Thony Properties v Livingstone.
The resolution document records that the applicant, who is a trustee, has granted the applicant, who is the named beneficiary of the trust, a fixed term tenancy. The applicant, as trustee and legal owner of the property, the subject of the trust, has granted a tenancy. The applicant meets the definition of landlord. The grantee of the tenancy is the beneficiary of the trust who is also a trustee. In this case the applicant can be defined as both the grantor of the tenancy, the landlord, and the grantee of the tenancy, the tenant.
The exclusion in section 5(1)(n) applies in situations where the property continues to be used principally as a place of residence by the landlord or owner of the premises. There is no dispute that the property has continued to be used principally as a place of residence by the applicant. As stated, I am satisfied that the applicant meets the definition of landlord; they are, as trustee, also the legal owner of the property.
The exclusion in section 5(1)(p) applies where any of the tenants is also the landlord, or one of the landlords, by virtue of an arrangement of a kind commonly known as a cross lease or lease back arrangement. This provision clearly anticipates situations in which a person meets both definitions of landlord and tenant. Under this provision it is the transaction which creates the relationship. In this case I am satisfied that the outcome of the arrangement is a relationship in which the applicant is both landlord and tenant.
I am satisfied that both exclusions in section 5(1)(n) and 5(1)(p) apply.
The issue now turns to whether the parties have agreed in writing to contract back into the provisions of the Act.
The applicant states that the previous tenant vacated the property on 09 April 2022, and that they took up residence on or about 14 April 2022. The applicant, citing several reasons, including that they were in financial distress and wanted to save money, and that the property did not comply with the Healthy Homes Standards, which would apply to any new tenancy.
While the resolution document may record the granting of a tenancy, it does not contain any reference to the landlord and tenant agreeing that all or any of the provisions in the Act apply. However, following Featherston v Barfoot and Thompson Limited, there was no requirement that the document do so. In this case however, no other written documents were produced. There is insufficient evidence to be satisfied that the landlord and tenant have agreed in writing that all or any of the provisions of the Act were to apply.
Having heard from the parties and considered the material produced, I am satisfied that the exclusions in section 5(1)(n) and 5(1)(p) apply to this tenancy, and that there is no evidence that the tenant and landlord agreed in writing that any or all the provisions of the Act were to apply.
The application is dismissed for want of jurisdiction. Name suppression
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
As the Respondent has been wholly successful challenging the jurisdiction of the Tribunal, I order suppression of their name and the address of the property.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.
The Tribunal does not have jurisdiction to consider the substantive claims. While I am satisfied that the facts and reasoning of this decision may be in the public interest, I do not consider the interest necessarily extends to the name of the applicant. It is for that reason the name of the applicant is also supressed.

Tenancy Tribunal case 4543930 — Healthy homes

At a glance

Tenancy Tribunal case 4543930 — Healthy homes

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions