What was Tenancy Tribunal case 4565009 about?

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

How much money was awarded in case 4565009?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4565009?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4565009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9552904-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4565009 about?

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

How much money was awarded in case 4565009?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4565009?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4565009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9552904-Tribunal_Order_Redacted.pdf.

Unit/Flat 6A, 145A Target Road, Wairau Valley, Auckland Tenancy Tribunal Case 4565009 — Healthy homes

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Under section 78(1)(a) it is declared that the agreement to rent premises at Unit/Flat 6A Target Road, Wairau Valley Auckland is a residential tenancy and is subject to the Residential Tenancies Act 1986.
The tenant is to clarify his claims and file any evidence and submissions in support by 5pm Friday 3 November 2023. Copies must also be sent to the landlord’s representative.
The landlord is to file all evidence and submissions in response by 5pm Friday 24 November 2023. Copies are to be sent to the tenant’s representative.
The parties will be notified of a date and time of a further hearing.

Reasons

The tenant attended the hearing with his representative, Mr Liam Collett.
The landlord did not attend owing to his ill health but was represented by Mr Richard Ritsma.
The parties dispute whether the tenancy of the property was a residential tenancy or a commercial lease.
The parties’ claims were originally set down for hearing by telephone on 19 May 2023. It was recognised that that the issues in dispute were not suitable for a telephone hearing.
In his original application, filed on or about 13 April 2023, the tenant sought: a. A refund of his bond b. Compensation of $10,000 c. A full refund of the rent paid d. Exemplary damages for a breach of section 137 of the Residential Tenancies Act 1986 (the RTA), which prohibits entering into a contract which contravenes the provisions of the RTA or evades or prevents the operation of the RTA.
In the landlord’s cross-application, he seeks a declaration that the agreement between the parties is a commercial lease and does not fall under the RTA.
The tenant’s application also refers to the Healthy Homes Standards and the fact that there is no kitchen but does not specify what he is seeking.
At the hearing, when asked what was being sought, Mr Collett said he believed that the Tribunal was first going to make an order about whether this is a residential tenancy. Given that the evidence about the start of the tenancy and the parties’ intentions took 2 of the 2½ hours allocated for this hearing, I limited the evidence and this decision to the question of jurisdiction: Was the agreement between the parties a residential tenancy? The law
Under section 78 Residential Tenancies Act 1986 (the Act), the Tribunal may “make an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise”.
Section 4 says that the Act applies to every tenancy for residential purposes except as specifically provided.
Section 5(1)(a) provides that the Act does not apply where the premises are commercial premises.
Section 2 contains a number of definitions: commercial premises means premises that are not residential premises 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
Section 2(3) says that where leased premises are used for both residential and commercial purposes, they are deemed to be residential unless it is proved that they were let “principally for purposes other than residential purposes”.
Section 10 of the Act says that where any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply. Background
There is no dispute that the premises at Unit 6A, 145A Target Road, Wairau Valley, Auckland were advertised on TradeMe for rent.
The tenant produced a screenshot of his TradeMe searches which includes a notice with a photo, entitled “Glenfield, 1 bedroom, $395 per week”. The full advertisement is not shown, but there are three other 1 bedroom properties showing on the screenshot, along with two cars. The tenant said that he was looking for a place to live on his own.
Photos produced by the tenant show that there was a shower and toilet and a kitchenette area, with a sink as one might find in an office space.
The landlord does not dispute that he placed an ad on TradeMe in the residential section. Mr Ritsma told the Tribunal that this occurred because Mr Barritt was putting the ad in via his phone. Mr Collett did not agree that a commercial lease could not be placed on TradeMe via a phone. But for reasons outlined below, I do not need to decide that issue.
The tenant said that he messaged he landlord and met him at the property on Sunday 8 January 2023. He signed all the paperwork and went to WINZ on the Monday. Under cross-examination, the tenant agreed that he needed to speak with the landlord again on Monday to attend to some further documentation for WINZ. He said that the landlord handwrote amendments to the First Schedule of the lease as outlined below in paragraph 38 and that the tenant then initialled those because he thought WINZ would want that.
The tenant said that he is not a roofer and he has not operated a roofing business. He said that he was looking for somewhere to live. The documents
The agreement between the parties has been recorded on a “Deed of Lease” dated 8 January 2023. It is a pre-printed form with details entered in handwriting, which the parties agree is mostly the landlord’s writing.
The Deed of Lease itself is only 1 page, but there are three Schedules attached, which total a further 12 pages and another page with a drawing of the footprint of 6 units, with “P6” and 6/Unit A” highlighted. The total document comprises 14 pages.
The most significant pages for the purposes of the hearing are: a. The front page entitled “Deed of Lease” of which there are 2 versions b. The second page which is the First Schedule. Again there are 2 versions of this.
The third page sets out an explanation of “outgoings” and then the Second Schedule sets out the terms and conditions of the agreement.
On both versions of the document, the landlord is recorded as Ross Barritt. Deed of Lease: Version 1
On the first page of one version of the Deed of Lease (which I will refer to as Version 1), the Tenant is recorded as “[Tenant’s name] Services”, with the Guarantor as [Tenant’s name].
Mr Barritt has signed the lease as Landlord.
The Tenant has signed the lease in two places: first as Tenant, where his name is recorded as “[Tenant’s name] Services” and his occupation is “Roofer”. Underneath that he has signed as Guarantor, where his occupation is again recorded as “Roofer”.
The names and occupations are all recorded in handwriting, which the parties agree is Mr Barritt’s.
On the next page, which is the First Schedule, it is recorded that the term is 2 years, to commence on 9 January 2023 and expire on 8 January 2025. The annual rent is recorded in handwriting as “$20020 + GST (if any) + O/G”. 1
On the next line are the printed words “Monthly Payments of Rent”. The word “monthly” has been crossed out and “wkly” written by hand. The amount of $385 + GST (if any) +O/G has been written.
It goes on to record that the rent payment dates will be “wkly each Monday”. The proportion of outgoings is “33% of office bldg.”
The default interest rate is 12% per annum.
On the next line, next to the printed words “Business Use” is the handwritten word, “Office”.
After that the Improvements Rent Percen[tage] is 15%. 1 O/G refers to “outgoings”
The landlord relies on Version 1 to support his argument that this was a commercial lease.
The tenant denies that he signed this document and says that the landlord has “doctored documents in order to falsify them”. Deed of Lease: Version 2
The tenant relies on Version 2. In this document the Landlord, Tenant and Guarantor are the same as in Version 1. However at the tenant’s signature, there is no mention of “[Tenant’s name] Services”. The tenant and guarantor are both recorded as [Tenant’s name]. At both sections his Occupation is recorded as “Job Seeker Benefit”.
The First Schedule of Version 2 records the rent and outgoings in the same way, but there are three differences: a. The annual rent of $20,020 has been crossed out and over the top the number $22,360 has been written and the tenant has put his initials. b. The weekly payments of $385 + GST (if any) + O/G have been crossed out and over the top the number $430 has been written and The Tenant has put his initials. c. Next to the printed words “Business Use” is a blank space.
The tenant says that the changes to the rent and weekly payments were made by Mr Barritt and that he initialled them. The tenant did not accept Mr Ritsma’s suggestion that the handwriting of the amendments to $22,360 and $430 is The Tenant’.
I do not believe much turns on who wrote those changes. The tenant accepts that he initialled them. They do not have any significance on determining the purpose of the lease. Further developments
The tenant moved into the property. The property was affected by flooding over Auckland Anniversary weekend (at the end of January).
The tenant was served with a Property Law Act Notice for non-payment of rent on 9 March 2023. On 28 April 2023 the landlord notified the tenant that the lease had been cancelled and the locks changed. The landlord’s argument
In his May 2023 statement to the Tribunal, Mr Barritt said the property is a commercial site and is situated in the industrial area of Wairau Valley. All tenants at 145A Target Road are the subject of a commercial Deed of Lease. Mr Barritt attached a link to an expired commercial listing which confirms that the property is definitely a commercial site situated in the Wairua Valley industrial area. He was in the process of selling the property prior to the floods of Anniversary Weekend January 2023.
The landlord said that the tenant, [Tenant’s name] Services, entered into a standard Deed of Lease, guaranteed by [Tenant’s name]. The lease is signed by all parties.
Mr Barritt said that under a normal Deed of Lease commercial tenants usually pay rent one month in advance at all times. The tenant was paying rent and opex by way of weekly payments and to that end he suggested two weeks rent in advance be paid. He denied that a bond had been paid.
Mr Barritt said that the Deed of Lease filed with the Tenant’s Application (Version 2) has been altered, which alteration has occurred after signature of the Deed of Lease by Mr Barritt as landlord, and by The Tenant on behalf of his business (as Tenant) and as Guarantor. He said he had no knowledge of and, did not consent to, any alteration of the Deed of Lease.
The basis of Mr Ritsma’s argument that this was a commercial lease was the fact that the property is in a commercial zone. However, he said that it is not uncommon for people to live or stay in these offices. Two agreements
The tenant denied signing Version 1, where he is recorded as a roofer. At the hearing he said that he is not a roofer and does not have a roofing business. He has assisted with roofing once. At the time of signing the agreement he was a job seeker and he was looking for residential accommodation.
The landlord denied signing Version 2, where the tenant’s occupation is recorded as a job seeker benefit.
The two versions appeared identical apart from the differences referred to above. Although the two versions record different information, it was difficult to see that either document had been tampered with. An original of version 1 was submitted to the Tribunal.
I observed to the parties that it appeared to me that although they seemed identical, there were slight differences in the placement of some parts of the handwriting, (in the parts where the wording was identical). I recognise it would require the opinion of a handwriting expert to assist in determining whether they had been written by different people, but I pointed out that in one version the P had a shorter stem, and that there was a dot after The Tenant’ name on one version, and a dot over the “i” is in a different place on one. I observed to the parties that this suggested to me that rather than one version being tampered with, there were two versions, both written by Mr Barritt and both signed by both parties.
Contrary to what Mr Barritt had said in his statement of 4 May 2023, Mr Ritsma told the Tribunal that is exactly what happened; there are two versions of the document, both signed by both parties. Findings
It is not relevant to this determination that the premises were zoned commercial or industrial; rather it is the purposes for which the premises were used or intended for occupation.
I find it is more likely than not that two leases were signed. Neither party has produced any evidence to show which was the original lease or how it was “doctored”. The landlord has accepted through his representative that two leases were signed.
I find that the purpose of Version 2 was to enable the tenant to approach WINZ for the moving in costs of his accommodation.
I find that the landlord has not established that the Act does not apply. For the following reasons, I find that in the present case the premises were used and intended for occupation as a place of residence and they were not let principally for purposes other than residential premises: a. The tenant was looking for somewhere to live. b. The tenant was not looking for commercial premises. c. The landlord advertised the premises in the flats to rent section of TradeMe. d. The property was described as “Glenfield, 1 bedroom.” e. The landlord knew that the tenant was going to live there (and that he required the assistance of WINZ for the initial costs). f. The tenant did not operate a roofing business from the premises, or at all.
The hearing of the tenant’s claims is adjourned to a date to be determined by the registrar.

Tenancy Tribunal case 4565009 — Healthy homes at Unit/Flat 6A, 145A Target Road, Wairau Valley, Auckland

At a glance

Tenancy Tribunal case 4565009 — Healthy homes at Unit/Flat 6A, 145A Target Road, Wairau Valley, Auckland

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