What was Tenancy Tribunal case 4597790 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 4597790?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4597790?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4597790?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9561871-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4597790 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 4597790?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4597790?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4597790?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9561871-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4597790 — Boarding House

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s name and identifying details.
The Tribunal does not have jurisdiction and the applications are dismissed.

Reasons

Both parties attended the hearing which took place by telephone. In this decision I will refer to [The landlord/s] as [Redacted] and Mr Hofstee as “H”.
The nature of the relationship between the parties must first be examined by the Tribunal in order to determine whether it has jurisdiction to hear the disputes.
There is an issue as to whether or not this is a flatting type arrangement and if the premises continued to be used principally as a place of residence by the landlord or the landlord’s family and thus excluded from the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 (RTA).
If the tenancy is excluded from the RTA, the application goes no further as the Tribunal will not have jurisdiction to hear and determine the claims. Jurisdiction – The law
RTA applies to every tenancy for residential purposes (s 4, RTA).
Residential premises” are any premises used or intended for occupation by any person as a place of residence (s 2(1), RTA).
A “tenancy agreement”, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants to any other person a tenancy of the premises.
A “tenancy” means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. “Premises” includes any part of any premises.
A “landlord”, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement.
The RTA 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 (s 5(1)(n), RTA).
In the District Court decision of Musson v Dobrisek DC Lower Hutt CIV-2006- 032-36, 5 May 2006 concerning section 5(1)(n) RTA, the Court said “principally” referred to the main use of the premises, not to the relative duration of the landlord’s occupation of the premises compared to somewhere else (paragraph 38). 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”.
Judge Broadmore went on to note obiter that: “Section 5(n) is not without its problems. For example, a pilot flying intonationally may own a residential property with several bedrooms. He keeps his possessions there, treats one of the bedrooms as his, and occupies it when he is home. He rents out the bedrooms he does not use to help pay the outgoings on the property and to make sure that the property is safe while he is out of the country. The nature of his work dictates that he spends little time actually in residence; but he has no other home anywhere. He may even spend the majority of his time out of New Zealand. Whether the principal use of the property is as the pilot's residence is open to debate. But that is not this case.”
Importantly, this case was decided before the introduction of Part 2A to the RTA in 2010 which relates to boarding houses. A “boarding house” means residential premises containing one or more boarding rooms with facilities for communal use by the tenants, that are occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time. A “boarding house tenancy” means a residential tenancy in a boarding house that is intended to last for 28 days or more, and which grants the tenant exclusive rights to occupy sleeping quarters and the right to shared use of the facilities. Facts
There is no written agreement between the parties. [The landlord/s] says she advertised for a flat mate on Trade Me and the Tribunal with provided text messages of the exchange between the parties at this time.
The house has three bedrooms and a second lounge that has been used as a bedroom. When H moved into the premises on 12 April 2019 [The landlord/s] occupied one bedroom and one other flat mate [Flatmate 1] occupied the other bedroom and another flat mate [Flatmate 2] occupied the lounge room. H moved into the remaining bedroom. The other areas of the house including the kitchen, bathroom, laundry and garden were shared.
[Flatmate 2] left soon afterwards. Text messages provided by [The landlord/s] suggest that [Flatmate 2] moved out in July 2019. He was replaced by a couple. [The landlord/s] says the couple did not stay very long as they broke up and she says that her baby then moved into this room about six months after it was born.
[The landlord/s] says that [Flatmate 1] moved out around February 2021. Her partner (now husband) [Redacted] moved in around the same time. At this point those living in the premises were [The landlord/s], [The husband], [The landlord/s]’s daughter and H.
[The landlord/s] says that H’s room became unliveable and provided photographs of this. She explained how she felt she had stepped into a carer role for H.
A sleep out was obtained so that H could move into that while his room was renovated. Once renovated [The landlord/s] says her daughter then moved into H’s old room. The sleep out was only a room and H still used the house to access the facilities that remained shared.
H says that for the first few months [The landlord/s] was hardly at the premises, and she would come over once a month. He says he saw her about five times. H says [The landlord/s] was barely there until she broke up with her boyfriend and had her first child.
[The landlord/s] says that she always lived at the premises. Her personal effects were always there. She admits that she would stay from time to time with her then boyfriend. He could not visit her as he was a farmer and had to stay on the farm. [The landlord/s] says that she also took a few trips away such as house sitting, camping and staying with her boyfriend for a short period after he had cut his hand on a chainsaw and needed assistance, but she says the premises was her own home and she did not live anywhere else. She did not want to live with her boyfriend as she said it was very on-off. She would go there intermittently – a night here and there to catch up. [The landlord/s] says that relationship ended in September 2019. She says as she was pregnant with her child at this time, and fearful of her former partner (having obtained a protection order) she says she went to stay with her mother for 2 or 3 weeks.
[The landlord/s] says H would not have seen her when she was at the premises because he was addicted to gaming and would always be in his room. She was also out of the house at work and studying. She would also pop out some evenings. Analysis
It is necessary to apply the definitions in the RTA described above to determine whether there was a “tenancy” to which the RTA applies. Section 5(1)(n) RTA then controls whether the relationship between the parties is governed by the RTA.
I find that these were residential premises, and the house was occupied as a place of residence. I find that [The landlord/s] granted a right to H to occupy his room and then the sleep out (being part of the premises) in consideration for rent. This creates a residential tenancy. H may have had exclusive possession of his room, meaning he had the right to exclude others from that part of the premises, but even if he did not, a right to occupy does not have to be exclusive.
[The landlord/s] meets the definition of a “landlord” under the RTA because she ultimately granted the right to occupy.
I do not consider that the premises here are a boarding house or that this case involves boarding house tenancies. The premises were not occupied by at least 6 tenants at any time.
The question whether the exclusion in section 5(1)(n) applies must therefore be considered.
On one view, the premises were not being used principally as a place of residence by [The landlord/s], for a short time, at the beginning of the tenancy. The main use of the premises when there were flat mates in all three spare bedrooms could be seen as being to provide accommodation to third parties.
If this is the correct view, then section 5(1)(n) does not apply, and the tenancy would not be excluded from the RTA. The effect of this would be to transform what the parties intended on the face of it to be a flat-share arrangement into a tenancy governed by the RTA, with all the obligations that fall on both landlords and tenants under the legislation.
I agree with Adjudicator Edison in Mbali Khumalo & Phathutshedzo Mudau v Stefanine Ward-Kotze [2022] NZTT Remote Location 4407308, 4404201 that s 5(1)(n) is a difficult provision to apply. I agree with the reasons of Adjudicator Edison in Mbali Khumalo that the approach adopted in Musson should now be distinguished in view of Part 2A RTA relating to boarding houses.
It is evident that the reference in Musson to landlord and tenant relationships which are “primarily commercial” reflected an understandable concern that section 5(1)(n) should not be used to exclude from the protection of the RTA arrangements that we would now call boarding house tenancies. A boarding house is clearly a commercial business and not a “small scale” or “limited letting”. The RTA ought to apply to those tenancies.
Where a large premises is tenanted but does not meet the definition of a boarding house, and the landlord or owner (or member of their family) usually resides at the premises and uses it as their permanent home, then I consider that section 5(1)(n) should usually apply. The fact that more rooms are occupied by tenants than by the landlord or owner (or member of their family) does not automatically change the fact that the premises are used mainly as the landlord’s home. The relationships are not “primarily commercial” in the same way as a boarding house, or a typical residential tenancy where the landlord grants exclusive possession to the tenants and there is no shared living.
Comparing the relative use of rooms or the area of the house occupied by the landlord with that of the tenants may lead to strange outcomes if s 5(1)(n) is mechanically applied. For example, it would mean that a landlord in a two bedroom house with all other areas shared with only with only one tenant could never rely on s 5(1)(n). It would also mean that the application of s 5(1)(n) could fluctuate (sometimes rapidly) from time to time if a landlord decided not to replace tenants who leave or added flatmates to rooms that were initially not occupied.
I accept that the premises was [The landlord/s]’s home before H moved in. [The landlord/s]’s position that it was always her home and she was just away from time to time is supported by text messages from the start of the tenancy telling H that she will not be “home tonight” and not being at “my place tonight”. I accept that the home is [The landlord/s]’s permanent home.
It is apparent from the text messages exchanged by the parties at the start of the tenancy that H understood that he was to be living with his landlord and other flat mates and that it was principally [The landlord/s]’s place of residence.
While a number of text messages provided refer to [The landlord/s] ‘popping in’ I accept [The landlord/s]’s evidence that these messages were sent during the times that she was away from the property temporarily including the times when her boyfriend had chain-sawed his hand and she was assisting him for several weeks, house sitting while her family were in Japan and a period where she was working at a camp doing night shifts as well as other times when she was away staying with her boyfriend.
Despite H’s submissions that [The landlord/s] was barely at the property during the start of the tenancy it was not disputed that [The landlord/s] retained her own possessions in the house and had her own room. I find that being away from the premises from time to time temporarily does not mean that s 5(1)(n) ceases to apply. It does not change whether the property was principally [The landlord/s]’s place of residence. If taking temporary breaks away from a main home means that s 5(1)(n) did not apply then this would leave landlords and their ‘flat mates’ in a constant state of flux concerning the status of their occupancy and the landlord might consider themselves restricted when taking holidays or overnight visits to preserve their position. That cannot be correct.
I must also consider if H’s move into the sleep out changes matters. If the sleepout is separate ‘premises’ s 5(1)(n) cannot apply because the owner is not using the tenanted premises as a place of residence during the tenancy.
In Whitelock v McConway DC Christchurch, CIV 2010 0092030, the subject premises were a sleepout, contained in a building which also contained the family shower and laundry room. The facilities within the sleepout where the tenant lived were limited in that there was no kitchen or sitting room. The tenant was expected to share the shower and laundry with the family. It was found that the exclusion in s 5(1)(n) applied and so the Tribunal did not have jurisdiction to hear the claim. In that case that, clearly there was a sharing of facilities and the tenant’s area was not fully self-contained.
I find that H moving into the sleep out does not change the position and s 5(1)(n) continues to apply. This case is similar to Whitelock v McConway: H continued to use and was dependant on the facilities inside the house. The sleep out was only a bedroom. Conclusion
I find that the Tenancy Tribunal does not have any jurisdiction to determine the applications. The exception to the RTA under s 5(1)(n) applies.
The applications must therefore be dismissed as the Tribunal does not have jurisdiction to hear this dispute. The parties must resolve their disputes in a different forum. Suppression
[The landlord/s] sought name suppression. Under s 95A(1) RTA a suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings. In the present case, [The landlord/s] has been wholly successful. I therefore award her suppression of her name and identifying details.
H has not been successful. Section 95A (4) RTA provides the Tribunal may, 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.
I find there is no reason to suppress H’s name considering the public interest and all other circumstances under s95(4) RTA.

Tenancy Tribunal case 4597790 — Boarding House

At a glance

Tenancy Tribunal case 4597790 — Boarding House

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