What was Tenancy Tribunal case 4621351 about?

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

How much money was awarded in case 4621351?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4621351?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4621351?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9459316-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4621351 about?

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

How much money was awarded in case 4621351?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4621351?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4621351?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9459316-Tenancy_Tribunal_Order.pdf.

18 Cambourne Road, Papatoetoe, Auckland 2025 Tenancy Tribunal Case 4621351 — Boarding House

Order

The application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The Landlord argues that s 5(1)(n) of the Residential Tenancies Act 1986 (“the Act”) applies and excludes this tenancy from the provisions of the Act.
Just prior to the hearing I told the parties I would hear and determine the issue of jurisdiction first, before hearing the substantive claim. I reiterated this at the hearing.
For the reasons outlined below, I am satisfied s 5(1)(n) applies. Consequently, there is no residential tenancy to which the Act applies. The law
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 18 Cambourne Road, Papatoetoe (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the Act as follows: “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 ....”.
The Landlord argued that money was paid by the Occupants/Tenants in exchange for occupancy rights and not as rent for tenancy. The Occupants/Tenants argued that they paid rent and had a verbal residential tenancy agreement with the [The landlord/s] Trust (the Trust) in exchange for $400 per week for the first month, and $500 per week thereafter.
The exceptions to the Act are contained in s 5. Relevantly, s 5(1)(n) of the Act provides: “...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.”
Under s 5 of the Act, member of the landlord's or owner's family means any person who is related to the landlord or owner by blood, or through marriage, a civil union, or a de facto relationship; or by adoption.
Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
The Trust, through its trustee Ms Ram, granted tenancy of the premises to the Occupants/Tenants, as members of her family. Ms Ram kept some of her possessions at the premises and occupied a bedroom when she was at home. She also intended to live with the Occupants/Tenants as a family unit on a more full-time basis in the future.
Section 10 of the Act states: “Where, in any proceedings before the Tribunal, 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.”
So, in the present case, the Landlord must prove, on the balance of probabilities, that s 5(1)(n) applies. This requires the landlord to prove that Ms Ram is the landlord and owner of the premises, and that Mr Singh and Mrs Zabeen are members of the landlord's or owner's family. Who is the landlord or owner of the residential premises
A trust is not a separate legal entity, the trustees own the trust assets of any family trust, for the benefit of the beneficiaries.
The trustees of the Trust own the premises. Ms Ram is the settlor of this Trust, a co-trustee and a beneficiary that has a licence to occupy the premises and use it as her place of residence. She does not have to pay rent if she pays all the outgoings for the premises. As such, she is not a tenant for the purposes of the Act. Although Mr Alan McLean is a co-trustee and a co-owner/landlord of the premises, as Davidson J states in Lothbury Management Ltd v Ryan and Anor [2021] NZHC 2621 [1 October 2021] at [45]: “...where two co-owners agree that the property is to be used by one of them as a place of residence, s5(1)(n) applies, and a residential tenancy governed by the Act is deemed not to exist”.
Whether the Occupants/Tenants are covered by the provisions of the Act, or are common law tenants, depends on whether they are family members of the Trustee landlord and legal owner of the premises. Were the occupants/tenants members of the landlord's or owner's family
During the hearing, the parties confirmed that Mr Singh is Ms Ram’s sister’s son and her nephew. They are therefore related by blood. The parties also confirmed that Mrs Zabeen is married to Mr Singh and is therefore related to Ms Ram by marriage.
Ms Ram, as a co-trustee/landlord/owner, entered into a verbal agreement for Mr Singh and his wife to reside at the premises, in exchange for $400 a week for the first month and $500 per week thereafter.
Ms Ram says she entered into this verbal agreement, on the understanding that Mr Singh and Mrs Zabeen are her family members, one by blood and the other by marriage. Further, that they were not tenants but occupants that paid rent towards offsetting the outgoings of the premises, that Ms Ram has responsibility for covering as the holder of a licence to occupy and the main tenant.
The Occupants/Tenants argues that they resided in the premises from around 28 March 2016 to 29 October 2022, and they were tenants as they paid rent as well as outgoings. They also made payments towards the costs of renovating the premises, as well as supplying free labour to carry out the renovations.
Ms Ram argues: aThe Act does not apply to the Tenants/Occupants occupation of the premises because s 5(1)(n) of the Act applies. bThere is no residential tenancy, and therefore, no jurisdiction for the Tenancy Tribunal to hear this matter. cBoth occupants are members of the landlord's or owner's family, invoking the s 5 exclusion because: iMr [The party] is Ms Ram’s sister’s son, a nephew and therefore a blood relative; and iiMrs [The party] is Mr [The party]’s wife and is therefore related to Ms Ram by marriage. dFurther, Ms Ram made clear to the Occupants/Tenants that there was no binding tenancy agreement between them and the Trust when the Occupants/Tenants asked for tenancy agreement in April 2016. She did so in her character reference letter, dated 28 April 2016, stating that he and his wife were not tenants but occupants that paid rent to live in the family home, and they did not have a residential tenancy with the Trust because: iMr Singh is her “nephew”, “beneficiary” and “agent for the rental property”; ii“Mr Singh and his wife moved into our family home on 21 March with me and will continue to reside there until I return to New Zealand in a few months’ time”; iii “Since the changes to my family Trustees, we as [The landlord/s] Trust has agreed not to have rental properties but families to live in them”; iv “I intend to relive in my house 18 Cambourne Road from July 2016 with my adopted son/nephew [The party] and his wife [The party] as a family unit”.
The parties agreed at the hearing that Mr Singh and his wife are members of the landlord's or owner's family, as required for the section 5(1)(n) exception in the Act to apply. Therefore, the Occupants/Tenants claim that they were tenants that are covered by the provisions of the Act must fail. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
The Occupants/Tenants have not been wholly or substantially successful in their application. Therefore, their application for reimbursement of the filing fee is denied.

Order

The application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The Landlord argues that s 5(1)(n) of the Residential Tenancies Act 1986 (“the Act”) applies and excludes this tenancy from the provisions of the Act.
Just prior to the hearing I told the parties I would hear and determine the issue of jurisdiction first, before hearing the substantive claim. I reiterated this at the hearing.
For the reasons outlined below, I am satisfied s 5(1)(n) applies. Consequently, there is no residential tenancy to which the Act applies. The law
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 18 Cambourne Road, Papatoetoe (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the Act as follows: “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 ....”.
The Landlord argued that money was paid by the Occupants/Tenants in exchange for occupancy rights and not as rent for tenancy. The Occupants/Tenants argued that they paid rent and had a verbal residential tenancy agreement with the [The landlord/s] Trust (the Trust) in exchange for $400 per week for the first month, and $500 per week thereafter.
The exceptions to the Act are contained in s 5. Relevantly, s 5(1)(n) of the Act provides: “...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.”
Under s 5 of the Act, member of the landlord's or owner's family means any person who is related to the landlord or owner by blood, or through marriage, a civil union, or a de facto relationship; or by adoption.
Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
The Trust, through its trustee Ms Ram, granted tenancy of the premises to the Occupants/Tenants, as members of her family. Ms Ram kept some of her possessions at the premises and occupied a bedroom when she was at home. She also intended to live with the Occupants/Tenants as a family unit on a more full-time basis in the future.
Section 10 of the Act states: “Where, in any proceedings before the Tribunal, 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.”
So, in the present case, the Landlord must prove, on the balance of probabilities, that s 5(1)(n) applies. This requires the landlord to prove that Ms Ram is the landlord and owner of the premises, and that Mr Singh and Mrs Zabeen are members of the landlord's or owner's family. Who is the landlord or owner of the residential premises
A trust is not a separate legal entity, the trustees own the trust assets of any family trust, for the benefit of the beneficiaries.
The trustees of the Trust own the premises. Ms Ram is the settlor of this Trust, a co-trustee and a beneficiary that has a licence to occupy the premises and use it as her place of residence. She does not have to pay rent if she pays all the outgoings for the premises. As such, she is not a tenant for the purposes of the Act. Although Mr Alan McLean is a co-trustee and a co-owner/landlord of the premises, as Davidson J states in Lothbury Management Ltd v Ryan and Anor [2021] NZHC 2621 [1 October 2021] at [45]: “...where two co-owners agree that the property is to be used by one of them as a place of residence, s5(1)(n) applies, and a residential tenancy governed by the Act is deemed not to exist”.
Whether the Occupants/Tenants are covered by the provisions of the Act, or are common law tenants, depends on whether they are family members of the Trustee landlord and legal owner of the premises. Were the occupants/tenants members of the landlord's or owner's family
During the hearing, the parties confirmed that Mr Singh is Ms Ram’s sister’s son and her nephew. They are therefore related by blood. The parties also confirmed that Mrs Zabeen is married to Mr Singh and is therefore related to Ms Ram by marriage.
Ms Ram, as a co-trustee/landlord/owner, entered into a verbal agreement for Mr Singh and his wife to reside at the premises, in exchange for $400 a week for the first month and $500 per week thereafter.
Ms Ram says she entered into this verbal agreement, on the understanding that Mr Singh and Mrs Zabeen are her family members, one by blood and the other by marriage. Further, that they were not tenants but occupants that paid rent towards offsetting the outgoings of the premises, that Ms Ram has responsibility for covering as the holder of a licence to occupy and the main tenant.
The Occupants/Tenants argues that they resided in the premises from around 28 March 2016 to 29 October 2022, and they were tenants as they paid rent as well as outgoings. They also made payments towards the costs of renovating the premises, as well as supplying free labour to carry out the renovations.
Ms Ram argues: aThe Act does not apply to the Tenants/Occupants occupation of the premises because s 5(1)(n) of the Act applies. bThere is no residential tenancy, and therefore, no jurisdiction for the Tenancy Tribunal to hear this matter. cBoth occupants are members of the landlord's or owner's family, invoking the s 5 exclusion because: iMr [The party] is Ms Ram’s sister’s son, a nephew and therefore a blood relative; and iiMrs [The party] is Mr [The party]’s wife and is therefore related to Ms Ram by marriage. dFurther, Ms Ram made clear to the Occupants/Tenants that there was no binding tenancy agreement between them and the Trust when the Occupants/Tenants asked for tenancy agreement in April 2016. She did so in her character reference letter, dated 28 April 2016, stating that he and his wife were not tenants but occupants that paid rent to live in the family home, and they did not have a residential tenancy with the Trust because: iMr Singh is her “nephew”, “beneficiary” and “agent for the rental property”; ii“Mr Singh and his wife moved into our family home on 21 March with me and will continue to reside there until I return to New Zealand in a few months’ time”; iii “Since the changes to my family Trustees, we as [The landlord/s] Trust has agreed not to have rental properties but families to live in them”; iv “I intend to relive in my house 18 Cambourne Road from July 2016 with my adopted son/nephew [The party] and his wife [The party] as a family unit”.
The parties agreed at the hearing that Mr Singh and his wife are members of the landlord's or owner's family, as required for the section 5(1)(n) exception in the Act to apply. Therefore, the Occupants/Tenants claim that they were tenants that are covered by the provisions of the Act must fail. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
The Occupants/Tenants have not been wholly or substantially successful in their application. Therefore, their application for reimbursement of the filing fee is denied.

Tenancy Tribunal case 4621351 — Boarding House at 18 Cambourne Road, Papatoetoe, Auckland 2025

At a glance

Claims & awards

Tenancy Tribunal case 4621351 — Boarding House at 18 Cambourne Road, Papatoetoe, Auckland 2025

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions