What was the outcome of Tenancy Tribunal case 4600709?

The tribunal order states: The application is struck out for want of jurisdiction.

How much money was awarded in case 4600709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4600709?

The primary dispute was State of repair. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4600709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9269263-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4600709?

The tribunal order states: The application is struck out for want of jurisdiction.

How much money was awarded in case 4600709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4600709?

The primary dispute was State of repair. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4600709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9269263-Tenancy_Tribunal_Order.pdf.

1147 West Coast Road, RD 1, West Melton 7671, West Melton Tenancy Tribunal Case 4600709 — State of repair

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Reasons

Both parties attended the hearing. Ms Clark represented the applicant. Mr Edge represented the respondent.

The applicant applied for work orders and compensation for failure by the respondent to repair and maintain the premises and to comply with the Healthy Homes Standards.

The premises here (the publican’s accomodation) are part of a building which is primarily commercial in nature. The applicant operates the premises as a tavern and restaurant under the trading name West Melton Tavern. Ms Clark said that the applicant is preparing to file in another jurisdiction similar claims against the respondent for the commercial part of the premises, but she wants the publican’s accomodation to be subject to the additional rights and obligations imposed on landlords of residential tenancies set out in the Residential Tenancies Act 1986 (the Act). Mr Edge disputes that the premises come within the Act.

Does the Tribunal have jurisdiction to hear the claims?

The Tribunal only has jurisdiction to hear disputes between landlords and tenants (and between landlords and a guarantor of a tenant’s obligations) provided the dispute is in relation to a tenancy that comes within the Act.

The starting point in answering the question of whether the tenancy comes within the Act is section 4 which provides that the Act applies to all tenancies of residential premises unless specifically excluded. Section 5 contains a list of occupancies which are excluded from the Act. The relevant one here is section 5(1)(a) which provides that the Act does not apply to premises that are commercial premises. “Commercial premises” are defined in section 2(1) to mean “premises that are not residential premises”. “Residential premises” are defined in the same section as “any premises used or intended for occupation by any person as a place of residence”.

In the situation where there is a dual use of the premises (as here), section 2(3) of the Act applies. This section provides that where premises are used for both commercial and residential purposes the premises are deemed to be residential premises unless it is proved that the premises were let principally for purposes other than residential.

I am satisfied that the premises here were let principally for commercial purposes. I accept Mr Edge’s evidence that the publican’s accommodation occupies less than 10% of the area of the entire building. His evidence is supported by a plan of the building included in a Seismic Report dated 11 February 2022. I also accept that the applicant leased the premises for the principal purpose of carrying on the business of a tavern and restaurant.

Ms Clark submits that the Act can apply in so far as the publican’s accomodation even though the rest of the building is commercial because the definition of premises in section 2 of the Act includes “any part of premises”.

I do not consider that the extended definition of premises applies here. The parties entered into a commercial deed of lease for the entire building, including the publican’s accomodation, and as mentioned above, it is clear that the purpose of the lease was for the applicant’s to carry on the business of a tavern and restaurant. In my view the use of the publican’s accomodation was merely incidental to the principal purpose of the building.

This situation is different from the situation in Kahi v Lucas HC Auckland HC81/96, 23 September 1996, a leading case on the meaning of “part of any premises” in the section 2 definition. In that case the landlord had a lease of commercial premises. He used the ground floor of the premises as a mechanical garage, and he sublet the top floor of the building to a tenant for residential purposes. The High Court held that, because premises could include part of any premises and the top floor was residential, the sublease came within the Act. However, as mentioned, here the applicant’s leased the entire building for commercial purposes. It is not a situation where there is a separate lease (or sublease) for the publican’s accomodation only.

I am therefore satisfied that the premises were let principally for commercial purposes and the Tribunal has no jurisdiction to hear the claims.

The application is therefore struck out for want of jurisdiction.

Reasons

Both parties attended the hearing. Ms Clark represented the applicant. Mr Edge represented the respondent.

The applicant applied for work orders and compensation for failure by the respondent to repair and maintain the premises and to comply with the Healthy Homes Standards.

Does the Tribunal have jurisdiction to hear the claims?

I am therefore satisfied that the premises were let principally for commercial purposes and the Tribunal has no jurisdiction to hear the claims.

The application is therefore struck out for want of jurisdiction.

Tenancy Tribunal case 4600709 — State of repair at 1147 West Coast Road, RD 1, West Melton 7671, West Melton

At a glance

Tenancy Tribunal case 4600709 — State of repair at 1147 West Coast Road, RD 1, West Melton 7671, West Melton

At a glance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear the claims?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear the claims?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions