What was Tenancy Tribunal case 4636050 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 4636050?

Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4636050?

The dispute type was not classified.

Where can I read the official tribunal order for case 4636050?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9391144-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4636050 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 4636050?

Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4636050?

The dispute type was not classified.

Where can I read the official tribunal order for case 4636050?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9391144-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4636050 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4636050 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Tenant to Landlord	$20.44

Claims and awards in Tenancy Tribunal application 4636050 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$20.44
Total payable by Tenant to Landlord	$20.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant/Landlord name and identifying details.
The tenant is to pay $20.44 to the landlord immediately.
The Tribunal declares the relationship between landlord and tenant in this matter to be a service tenancy as defined in s.2 of the Residential Tenancies Act 1986.
All other applications are dismissed.

Reasons

Both parties attended the remote teleconference hearing on 5 September 2023.
The landlord is an incorporated society and was represented by [The landlord’s representative/s].
For the purposes of this order, I propose referring to [The tenant/s] as the “tenant” and [The landlord/s] as the “landlord,” although the key issue in this application is whether there is in fact a tenancy.
The landlord has premises at [redacted] which it operates as [redacted] for its members at [redacted] (“the premises”).
The landlord leases the premises pursuant to a concession from the Minister of Conservation dated 23 August 2022. The concession allows the landlord to occupy the land “for the purpose of providing a day use base for club members participating in [redacted], and for other outdoor recreation and community activities in the area...” (“ the concession agreement”).
The premises includes an apartment. The apartment is a two room area of approximately thirty square metres (“the apartment”). The apartment is self- contained with the exception of laundry facilities which are situated in the common area of the premises.
For a number of years, the landlord has had a [redacted] custodian. The custodian has in the past lived in the apartment.
In 2020, the landlord was unable to find a custodian for the winter season, which is usually June to late September or early October.
Through an acquaintance, the tenant discovered that the landlord was looking for someone to take on the custodian role in 2021.
The tenant agreed with the then landlord [redacted], that she would be the lodge custodian and move into the apartment in May 2021.
The tenant explained the details of the arrangement between the parties as follows; • The tenant would take care of the premises during the winter season • The tenant would live at the apartment for the winter season with the option to extend that term. • During winter, the tenant would have to carry out certain agreed tasks at the premises. • The tenant did not think that the work carried out by her made her an employee of the landlord and considered the work carried out was carried out in the capacity of a volunteer. • The tenant agreed that the volunteer work was related to the tenancy. • Rent of $120.00 per week would be paid by the tenant. I record that the previous caretaker had paid $150.00 per week in rent.
The winter 2021 season ended and the tenant says that she asked [The previous landlord] if she could stay on at the premises on a permanent basis. The tenant says that [The previous landlord] agreed. The tenant stayed on at the premises through the 2021/2022 summer. She met with [The previous landlord] again and a rent increase was agreed upon to $150.00 per week.
The tenant remained living at the premises during the 2022 winter.
The tenant attended the club AGM in May 2022 and informed the landlord that she may be moving out of the premises to go to [country]. In November 2022, the tenant confirmed to the landlord that she would not be moving out and would be remaining at the premises.
Over the summer of 2022/2023 the tenant left New Zealand for a total of 10 weeks on holiday. During that time she continued to pay rent on the premises.
In early 2023, the tenant was advised that the landlord wanted to increase the rent. The tenant agreed.
From this point further negotiations took place between the landlord and tenant as to the future terms of the tenancy. The landlord wished to have the tenant enter into a service occupancy agreement and to revise the hours worked, the nature of the duties and the term of the tenancy. The parties were unable to reach an agreement. As a result, the outcome of those negotiations is not directly relevant to the dispute before the Tribunal.
The parties agree that there has never been a written tenancy agreement for the premises.
In evidence, the landlord accepted that the arrangement between the parties was informal.
The landlord did not consider the custodian role to be that of a volunteer, but that of an employee. The nature of the role was such that it was essential that the custodian live at the premises. The landlord confirmed that the custodian role and the tenancy of the apartment went hand in hand. Historically and prior to this tenancy, there had only been a custodian residing at the premises during the winter.
The landlord raised concerns relating to the terms of the concession agreement. Clause 6 of the third schedule to the concession agreement provides that the landlord must ensure that the accommodation and facilities are not occupied on a permanent or semi-permanent basis, except for a custodian, caretaker, warden or manager which may be a single person or a couple. The landlord was concerned that having the tenant’s boyfriend reside at the premises in a capacity of other than a custodian, may put them in breach of the concession agreement.
No evidence was proffered by the landlord to show that the terms of the concession have ever been taken into account in their dealings with the tenant, until recently when the tenant’s boyfriend moved into the accommodation. Service Tenancy
The relevant section of the RTA provides as follows; “Service tenancy” means a tenancy granted under a term of, or otherwise as an incident of, a contract of service or a contract for services between the landlord as employer and the tenant as employee or contractor, whether or not a separate tenancy agreement is concluded in writing between the parties, and whether or not any rent is payable for the tenancy; ....”
The balance of the definition is irrelevant to the matters under consideration. With regard to the definition, however, the legislature uses the expression “means” a tenancy. Where the legislature employs the word “means” in a definition of a term, the definition is exclusive and no other meaning can be assigned to the term except that contained in the statutory definition.
I find that the tenant’s tenancy is a service tenancy as it was undoubtedly granted as a term of or as an incident of the tenant’s contract of service with the landlord. To put it simply, if the tenant were not going to work as a lodge custodian, the tenancy would not have been available to her.
The tenant said that she thought that initially she may have been a volunteer. A volunteer is by definition someone who chooses to work for the good of the community or some public benefit, and who is not paid or otherwise rewarded for their work and does not expect to be. In this case, the tenant has been rewarded for their services by the provision of discounted rent.
The definition of tenancy is also exclusive and is 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;”
A tenancy agreement is defined as: “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.”
The definitions of “tenancy” and “tenancy agreement” both refer to there being rent.
Rent in the RTA is defined: “Rent” means any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the tenant; but does not include any sum of money payable or paid by way of bond.”( the emphasis is mine).
In this case, the tenant has provided services to the landlord in return for a discounted rent amount. The tenant has paid rent by a combination of payment and the provision of services.
Having taken the evidence and the relevant legislation into account, I find that this is a service tenancy and that the Tribunal has jurisdiction.
The tenant’s employment has not as of the date of this hearing been terminated. The Tribunal’s jurisdiction does not extend to employment matters and I make no ruling with regards to the tenant’s current employment situation.
Section 53(1) RTA provides that a landlord may terminate a service tenancy by giving at least 14 days’ notice if the current contract of service or contract for services has terminated or either party has given notice to terminate that contract.
No evidence of a notice of termination of employment was put before the Tribunal and as a result, the service tenancy remains in place.
Whilst the landlord has filed a cross claim, the application does not seek any specific remedy from the Tribunal.
By way of a declaration the Tribunal declares that the current tenancy arrangement between the tenant and landlord is that of a service tenancy.
As the landlord has substantially succeeded in this matter, I order the tenant to reimburse the filing fee to the landlord.
Both parties have applied for name suppression. The Tribunal may order suppression for any party who is wholly or substantially successful or where there may be no public interest in the publication of the party names. The landlord has been substantially successful and suppression of the landlord details is ordered. I consider that both parties have been confused as to their rights in this matter and in particular, I consider that the tenant has at all times been genuine in her application to the Tribunal. As there is no public interest in the publication of the tenant details, those details are suppressed.

Tenancy Tribunal case 4636050 — Tenancy dispute

At a glance

Tenancy Tribunal case 4636050 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions