What was Tenancy Tribunal case 4626029 about?

The tribunal order states: The Tribunal orders suppression of both party names and identifying details.

How much money was awarded in case 4626029?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4626029?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4626029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9296953-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4626029 about?

The tribunal order states: The Tribunal orders suppression of both party names and identifying details.

How much money was awarded in case 4626029?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4626029?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4626029?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9296953-Tribunal_Order_Redacted.pdf.

suppressed] Tenancy Tribunal Case 4626029 — Boarding House

Order

The Tribunal orders suppression of both party names and identifying details.
The application is dismissed.
By way of declaration: the accommodation arrangement between the parties was not a residential tenancy and accordingly the Tenancy Tribunal has no jurisdiction over it.

Reasons

This matter was heard by way of teleconference hearing. [The landlord’s representative/s] represented [The landlord/s] as she is currently overseas.
[The landlord/s], the owner of the property, came to an agreement in June 2023 with [Tenant 1] and [Tenant 2] about their occupation in her home after they had responded to an ad she placed for flatmates. Initially the agreement was that they would stay in the studio which was in the garage, however this was agreed before they saw the space. When they arrived and realised how cold it was, the parties agreed that they would reside in an inside bedroom that had previously been used by air b’n’b guests until September, at which point they would move in to the studio.
The arrangement however only lasted a matter of weeks as days after they had moved in, [The landlord/s] gave them 21 days’ notice to leave due to disagreements they had been having.
The property is [The landlord/s]’s home, and she was in residence for the first two nights of [Tenant 1] and [Tenant 2]’s stay. She then travelled overseas on sabbatical and was to be away until 28 August. Whilst she was away her spaces in the home were unoccupied.
The set-up of the house is as follows: a. [The landlord/s] was the only person who had a key to the front door. She had the exclusive occupation of her personal living room (to the left of the front door) and the upstairs where her bedroom and bathroom are. b. [Tenant 1] and [Tenant 2]’s bedroom was on the ground floor where the kitchen and living room are, and a bathroom. They, and the air b’n’b guest had a key to the back door only. The bathroom is just next to the back door. c. There was one other occupant, a man who lived in the sleepout in the garden. He had a key to the back door to access the bathroom and at times used the kitchen with [Tenant 1] and [Tenant 2]’s consent although he was not supposed to by his arrangement with [The landlord/s]. d. There was also a studio in the garage. This was where [Tenant 1] and [Tenant 2] were originally to stay and intended to move into when [The landlord/s] returned and installed a heat pump.
[Tenant 1] and [Tenant 2] have a number of concerns relating to their tenure and the set-up [The landlord/s] runs. They have therefore applied for relief from the Tribunal.
There is however a preliminary issue being whether the Tribunal can hear the claim, which is what this hearing was set down to establish. Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA 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 RTA sets out a variety of circumstances where a tenancy is excluded from the RTA. Section 10 RTA provides that, where a party to proceedings contends that the RTA does not apply, they must establish the facts supporting their contention. In other words, [The landlord/s] has the burden of proving the RTA does not apply.
[The landlord/s] says this was a boarding situation and a property used for short term stays, therefore it is exempt from the RTA. In particular she relies on the exemptions stated at s5(1)(k) and (n) as applying to this situation. I discuss each separately as follows. Section 5(1)(k)
S5(1)(k) states that the RTA shall not apply: “where the premises – (i)are intended to provide temporary or transient accommodation (such as those provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and (ii)are subject to an agreement that has been entered into for the purposes of providing temporary or transient accommodation that continues to be provided under the agreement.”
Therefore, for this exclusion to apply, both conditions of subsection (i) and (ii) must be met. I am not satisfied that this exclusion is relevant here, as whilst [The landlord/s] may have usually rented out this room and/or the garage studio to short term air b’n’b guests, the agreement between these parties was not for a fixed term; it was indefinite. It was distinguished to her agreements with her air b’n’b guests by virtue of the differing arrangements they had and the platform from which they met.
Whilst [Tenant 1] and [Tenant 2] say they intended to leave in November anyway, the agreement does not refer to this and had their intentions changed and they wished to remain longer, this would likely have occurred. The agreement contains provisions for giving notice to end the occupation and has no fixed end date. Accordingly, the parties’ agreement was not one entered into for the purpose of providing temporary or transient accommodation. Therefore, this exclusion does not apply to this situation. Section 5(1)(n)
S5(1)(n) of the RTA excludes arrangements 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. This was not a boarding house as it was not occupied, or intended to be occupied, by at least six tenants at any one time.
[The landlord’s representative/s] says that this is [The landlord/s]’s home; she was only away for a short time and could have returned whenever she wished. Effectively she argues that the house was [The landlord/s]’s primary residence therefore [Tenant 1] and [Tenant 2] were just boarders with her and subject to the exception. She says that it was the intention of the parties that this be a boarding arrangement only, which is evidenced by the original advertisement that was for flatmates and noted the sharing of the facilities, and the boarding agreement they all signed. Further, the rent covers power, gas and internet which is closer to a boarding arrangement than a tenancy one.
[Tenant 1] and [Tenant 2] say they effectively had exclusive occupation of their ‘apartment’ while [The landlord/s] was away and that had been their understanding from the outset; that is what they thought they were getting when they answered the ad. Therefore, they say their residence was run as a residential tenancy and that is what they had understood they had agreed to. They appreciate that the arrangement would have changed when and if [The landlord/s] returned from her travels but for the pertinent period, they say this was a residential tenancy. They note that their rent was analogous to rents paid for whole apartments, as pointed out to them by [The landlord/s].
When considering whether the house was always intended to be [The landlord/s]’s principal place of residence, the High Court case of Musson v Dobrisek (CIV-2006-032-36) is helpful and specifies clearly that for the exemption stated in s5(1)(n) to be applicable, the property’s principal use would need to be a place of residence of the landlord. So not that the landlord used the home principally as their place of residence, but more that the main use of the premise was the landlord’s home, and the boarders were incidental to that purpose. In other words, did the landlord have a greater use of the premise than the tenants?
[The landlord’s representative/s] submits that although [The landlord/s] had intended to be away for three months, she still kept all her belongings there and maintained her separate space. Had she been taken ill and needed to return early, [The landlord/s] would have moved back in. She says [The landlord/s] was clear with [Tenant 1] and [Tenant 2] that this was her home, and she would be returning.
[The landlord’s representative/s] also relies on the agreement the parties signed which refers to sharing the premise, designates the shared spaces, is consistent with a boarding agreement as distinct from a tenancy agreement and specified the jurisdiction of the Disputes Tribunal for disputes. I note that when determining whether the RTA is excluded, the Tribunal considers the substance and intent of the agreement between the parties rather than the labels they have applied.
[Tenant 1] and [Tenant 2] were aware [The landlord/s] was returning and that they were not to use her spaces. She still had food in the kitchen, and they were only able to use part of the kitchen for their belongings. They knew that when she returned, they would have to share the kitchen and other facilities with her. This was an indefinite arrangement for occupation during which [The landlord/s] was going to reside in her home at times.
There are several factors of this situation that have supported [Tenant 1] and [Tenant 2]’s understanding of the arrangement being covered by the RTA, as follows: a. [The landlord/s] did intend to lodge the bond with the Bond Centre but did not because the arrangement ended so quickly. I am however not persuaded that this intention is determinative. I accept [The landlord’s representative/s]’s submission that [The landlord/s] was not aware that lodging the bond in this way effectively accepted jurisdiction of the RTA, more that she thought that was what she had to do with any bond, regardless of the reason for the bond. b. [The landlord/s] referenced the premise as [Tenant 1] and [Tenant 2]’s ‘home’ in her initial communications with them. She also distinguishes their situation in her ‘tips’ document to that of any air b’n’b guests that may be staying by highlighting rights they had that guests did not. I am satisfied that this arrangement was different to air b’n’b stays as discussed above. c. This was an agreement for occupation of an indefinite period which the parties were entitled to end by providing notice.
In Adams v Massey University (DC Palmerston North, TT 43/94, 10 October 1994) Judge Toomey stated that in order to give effect to the RTA’s true intent and meaning, the Courts are required to interpret the exemptions strictly and not liberally. I therefore look at the specific terms s5(1)(n) uses: a. continue to be used, during the tenancy b. principally as a c. place of residence d. by the owner
Whilst away, [The landlord/s] maintained responsibility for the gardens, the bills and even had a [redacted] vacuum the shared spaces. The space reserved for her return, her exclusive space was larger than [Tenant 1] and [Tenant 2]’s bedroom and continued as her space in her absence.
The Oxford dictionary definition of principally includes the terms chiefly, mainly, primarily. Clearly this was [The landlord/s]’s place of residence before she left for her trip.
I also find that it continued to be her place of residence whilst she was away. The fact that she was travelling for three months does not mean that she loses her residence, just that she was away. She did not establish a base overseas and did not relocate her belongings; she was just temporarily absent. For one to ‘lose’ their ‘place of residence’ whilst travelling for a finite period would be nonsensical.
Had [The landlord/s] remained living in the home this would clearly have been a situation of [Tenant 1] and [Tenant 2] boarding with her. At that point they would have only had exclusive use of their bedroom. This was the situation for 2 days at the beginning of the occupation and was intended to be the situation when [The landlord/s] returned from overseas.
I am also satisfied that this property was principally used as [The landlord/s]’s home and the occupation of others within it were incidental functions to that primary function. She had control over a greater space than any other and retained control over when and who stayed with her.
There was no self-contained nature of the spaces [Tenant 1] and [Tenant 2] occupied. They shared a bathroom with [The landlord/s] when she was there and air b n b guests. They shared the kitchen when [The landlord/s] was there and intended to do so again when she returned. There may well have been a misunderstanding in the communications between the parties due to the language barrier, but I am satisfied that the relevant documentation being the advertisement, boarding agreement and ‘tips’ document [The landlord/s] provided, are all consistent with a boarding arrangement.
Therefore, having considered all of the above I am satisfied that this premise continued to be used during the tenancy principally as a place of residence by the owner. Had [The landlord/s] been overseas for an indefinite period or had there been no clarity to her return date or had others used her spaces whilst she was away, my finding may well have been different. The communications however all indicate an understanding that the space was to be shared and the occupants were to be flatmates with [The landlord/s] and her partner when they returned. Accordingly, the exception at s5(1)(n) applies to this situation and as such the RTA does not apply. This claim must therefore be dismissed.
As discussed at the hearing, given my finding, the appropriate forum for dealing with this dispute is the Disputes Tribunal. Accordingly, if [Tenant 1] and [Tenant 2] wish to continue with their claims, they will need to file an application in that jurisdiction. Suppression
Given that neither party was clearly aware of the issues as to jurisdiction, it is not proportionate that their names be published. Accordingly, pursuant to s95A of the RTA, I direct that both party details be suppressed.

Tenancy Tribunal case 4626029 — Boarding House at suppressed]

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Tenancy Tribunal case 4626029 — Boarding House at suppressed]

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