What was Tenancy Tribunal case 4627554 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 4627554?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4627554?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4627554?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9938489-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4627554 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 4627554?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4627554?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4627554?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9938489-Tribunal_Order_Redacted.pdf.

36 Fowler Street, Northcote, Auckland 0627 Tenancy Tribunal Case 4627554 — Exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The tenant’s application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The tenant applied for compensation, exemplary damages and reimbursement of the filing fee. He claimed that the landlord unlawfully terminated his fixed term tenancy without grounds.
The tenant provided: a. A copy of a tenancy agreement that he signed electronically and sent back to the landlord on 3 July 2023; b. Text message evidence that he had been required to pay a bond and provide proof to the landlord that it had been paid; c. Email evidence that he did pay the bond to the landlord; d. Text message evidence he was given a move in date of 8 July 2023; and e. Email evidence that the landlord unilaterally terminated the fixed term tenancy on 5 July 2023 without grounds.
The Landlords argued that s 5(1)(n) of the Residential Tenancies Act 1986 (“the Act”) applies and excludes this tenancy from the provisions of the Act and that the flatmate was made aware when he came to view the house that this was a flat sharing situation, he would be living with the owners, their four-year-old child and three other flatmates.
At the hearing I told the parties I would hear and determine the issue of jurisdiction first, before hearing the tenant’s substantive claim.
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 and whether the landlord continue to use the premises principally as her place of residence
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 36 Fowler Street, Northcote, Auckland 0627 (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 ....”.
Section 5 of the Act contains the exceptions to the Act. 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.”
The Landlords argued that that their primary or principal place of residence is at 36 Fowler Street, Northcote, Auckland and had been from the time the tenant was due to move in, being the date, the house was ready to be inhabited, to the present day. The tenant was to rent a room on the lower level of the house.
The parties confirmed that they shared kitchen, dining, lounge and laundry facilities and both had access to and use of the yard. They also confirmed that their separate rooms were not locked and were accessible each by the other.
The tenant argued that as neither he nor the landlords had moved into the house at the time the tenancy agreement was unlawfully and unilaterally terminated and so he did not live with the landlord/owner and his family. He did concede during the hearing that he would have been living with the landlords/owners if he had been allowed to move in on 8 July 2023 when the house first became habitable, as all the utilities were connected from that date.
The landlords provided evidence of the trade me advertisement the tenant answered. Contained within that advertisement is the following words “...you will be living with me, my wife, and a four-year-old son. Professional working full time and laid back in our 30’s. The rest of the flatmates are in their early 20’s”.
The tenant confirmed that he vaguely remembered the landlord informing him that the landlords and their child would be primarily living in the house and getting in some flatmates in the lower-level area of the house and that this did not concern him as he liked the room. When the tenant was asked to sign a tenancy agreement on 3 July 2023, he thought that he was going to be a tenant rather than a flatmate. He says at that point he was still unclear who else he was going to be sharing the house with and thought he must have been mistaken that the landlords were intending to live in the house.
The landlords confirmed during the hearing they and their child had a separate bedroom and ensuite in the top level of the house and shared all the amenities with 3 to 4 flatmates.
Mrs Zhou gave evidence that during the building of the house, and when she and her husband advertised for flatmates, it was always on the understanding she, her son and husband would live in the house with the flatmates. As such, she had a vested interest in reviewing the applications and deciding who she felt comfortable sharing the shared spaces with her and her son. She stated that on the day the tenant viewed the house, she and her son waited outside in the car but could see the potential tenant going into and out of the house with Mr Pan.
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 landlords and head tenants granted the right to the tenant to occupy a room and to share the other household facilities with them and their child and up to 3 other flatmates at any one time.
The landlord accepted the tenancy agreement he asked the tenant to sign was misleading and confusing but stated that he did not know about flat sharing agreements until the tenant made this application to the Tribunal. However, he also stated that at no time did he lead the tenant to believe anything other than he would be rented one of the lower-level rooms, would use the shared spaces with other tenants and the owners, being the living room, dining room, kitchen and main bathroom.
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.”
The Landlords has proven, on the balance of probabilities, that s 5(1)(n) applies by proving that the landlords/owners and their son continue to use the premises as their principal place of residence and had the tenant moved in they would have also been living their during his tenure.
Therefore, the tenant’s claim that he was a tenant that is 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 tenant has not been wholly or substantially successful in his application. Therefore, his application for reimbursement of the filing fee is dismissed.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The tenant’s application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The tenant applied for compensation, exemplary damages and reimbursement of the filing fee. He claimed that the landlord unlawfully terminated his fixed term tenancy without grounds.
The tenant provided: a. A copy of a tenancy agreement that he signed electronically and sent back to the landlord on 3 July 2023; b. Text message evidence that he had been required to pay a bond and provide proof to the landlord that it had been paid; c. Email evidence that he did pay the bond to the landlord; d. Text message evidence he was given a move in date of 8 July 2023; and e. Email evidence that the landlord unilaterally terminated the fixed term tenancy on 5 July 2023 without grounds.
The Landlords argued that s 5(1)(n) of the Residential Tenancies Act 1986 (“the Act”) applies and excludes this tenancy from the provisions of the Act and that the flatmate was made aware when he came to view the house that this was a flat sharing situation, he would be living with the owners, their four-year-old child and three other flatmates.
At the hearing I told the parties I would hear and determine the issue of jurisdiction first, before hearing the tenant’s substantive claim.
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 and whether the landlord continue to use the premises principally as her place of residence
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 36 Fowler Street, Northcote, Auckland 0627 (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 ....”.
Section 5 of the Act contains the exceptions to the Act. 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.”
The Landlords argued that that their primary or principal place of residence is at 36 Fowler Street, Northcote, Auckland and had been from the time the tenant was due to move in, being the date, the house was ready to be inhabited, to the present day. The tenant was to rent a room on the lower level of the house.
The parties confirmed that they shared kitchen, dining, lounge and laundry facilities and both had access to and use of the yard. They also confirmed that their separate rooms were not locked and were accessible each by the other.
The tenant argued that as neither he nor the landlords had moved into the house at the time the tenancy agreement was unlawfully and unilaterally terminated and so he did not live with the landlord/owner and his family. He did concede during the hearing that he would have been living with the landlords/owners if he had been allowed to move in on 8 July 2023 when the house first became habitable, as all the utilities were connected from that date.
The landlords provided evidence of the trade me advertisement the tenant answered. Contained within that advertisement is the following words “...you will be living with me, my wife, and a four-year-old son. Professional working full time and laid back in our 30’s. The rest of the flatmates are in their early 20’s”.
The tenant confirmed that he vaguely remembered the landlord informing him that the landlords and their child would be primarily living in the house and getting in some flatmates in the lower-level area of the house and that this did not concern him as he liked the room. When the tenant was asked to sign a tenancy agreement on 3 July 2023, he thought that he was going to be a tenant rather than a flatmate. He says at that point he was still unclear who else he was going to be sharing the house with and thought he must have been mistaken that the landlords were intending to live in the house.
The landlords confirmed during the hearing they and their child had a separate bedroom and ensuite in the top level of the house and shared all the amenities with 3 to 4 flatmates.
Mrs Zhou gave evidence that during the building of the house, and when she and her husband advertised for flatmates, it was always on the understanding she, her son and husband would live in the house with the flatmates. As such, she had a vested interest in reviewing the applications and deciding who she felt comfortable sharing the shared spaces with her and her son. She stated that on the day the tenant viewed the house, she and her son waited outside in the car but could see the potential tenant going into and out of the house with Mr Pan.
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 landlords and head tenants granted the right to the tenant to occupy a room and to share the other household facilities with them and their child and up to 3 other flatmates at any one time.
The landlord accepted the tenancy agreement he asked the tenant to sign was misleading and confusing but stated that he did not know about flat sharing agreements until the tenant made this application to the Tribunal. However, he also stated that at no time did he lead the tenant to believe anything other than he would be rented one of the lower-level rooms, would use the shared spaces with other tenants and the owners, being the living room, dining room, kitchen and main bathroom.
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.”
The Landlords has proven, on the balance of probabilities, that s 5(1)(n) applies by proving that the landlords/owners and their son continue to use the premises as their principal place of residence and had the tenant moved in they would have also been living their during his tenure.
Therefore, the tenant’s claim that he was a tenant that is 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 tenant has not been wholly or substantially successful in his application. Therefore, his application for reimbursement of the filing fee is dismissed.

Tenancy Tribunal case 4627554 — Exemplary damages at 36 Fowler Street, Northcote, Auckland 0627

At a glance

Tenancy Tribunal case 4627554 — Exemplary damages at 36 Fowler Street, Northcote, Auckland 0627

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