What was Tenancy Tribunal case 4637096 about?

The tribunal order states: By way of declaration, the Tenancy Tribunal does not have jurisdiction over the

How much money was awarded in case 4637096?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4637096?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4637096?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9657870-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4637096 about?

The tribunal order states: By way of declaration, the Tenancy Tribunal does not have jurisdiction over the

How much money was awarded in case 4637096?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4637096?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4637096?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9657870-Tribunal_Order_Redacted.pdf.

[location suppressed] Tenancy Tribunal Case 4637096 — Boarding House

Order

By way of declaration, the Tenancy Tribunal does not have jurisdiction over the relationship or agreement between the parties.
The application is struck out.

Reasons

Both parties attended the hearing. This was a continuation after a previous case conference. [Suppressed] appeared as counsel for [suppressed]. Mr [suppressed] joined as the second respondent via teleconference.
The earlier case conference minute foreshadowed the preliminary matter to be revisited today was jurisdiction, if so challenged. [Suppressed] challenged the jurisdiction, requesting the application be struck out via the exclusion provision s 5(n) Residential Tenancies Act 1986 (RTA).

Does the Tenancy Tribunal have jurisdiction?

The Tribunal has jurisdiction to determine in accordance with the Act any dispute between a landlord and a tenant which relates to any tenancy to which the Act applies (section 77(1)).
The Act applies to every tenancy for residential purposes except as specifically provided (section 4).
Section 2(1) of the Act defines the meaning of “tenancy” and “residential premises”. A “tenancy”, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. “Premises” includes any part of any premises.
Section 5(1) provides that the Act does not apply in various cases, including 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 a member of their family (section 5(1)(n)).
The meaning of “boarding house” and “boarding house tenancy” are defined by section 66B of the Act. A “boarding house” means residential premises containing 1 or more boarding rooms, along with facilities for communal use by the tenants of the boarding house, that is occupied by at least 6 tenants at any one time. I do not find this situation to be a boarding house due to the number of tenants being less than six during this tenancy. The short-term use of some rooms for residential course accommodation by others is not counted.
Where a party contends that the Act does not apply in respect of any tenancy of residential premises, it is for that party to establish the facts on which it is contended that the Act does not apply (section 10).
The tenant is the mother of one of the landlords. She moved down from North Island in 2022 and purchased a neighbouring property for her horses. She may have contributed financially towards the purchase of the property. During her stay the verbal arrangements were modified but rent was paid, of varying amounts. Some non-cash consideration appears to have been made.
There was no written tenancy agreement until one was drafted by the son and signed by him and his mother on 29 March 2023. By this time the landlords were in a relationship dispute. The son drafted the new agreement as he was aware the informal arrangement to date may disadvantage his mother.
There had earlier been a sale and purchase agreement drafted for signing after the landlords had planned to sell the property and found a vendor. While the sale did not finalise, the completed contract at Schedule 3 in the final draft was blank. This is the section to be completed when a tenancy is included within a sale agreement.
Another issue is whether the premises were principally used as the landlord’s “place of residence” during the tenancy. The words “reside”, and “residence”, connote an element of permanence. In Main v Hooker (CIV-2180/03), 2 February 2004, Judge Green) it was said that a “place of residence” meant the place to which a person would normally go to live, their home. The test when assessing the principal use is not the relative duration of the landlord’s occupation of the premises compared to somewhere else (Musson v Dobrisek (CIV-2006-032-36, 5 May 2006, Judge Broadmore). The complication in this matter was the son was unable to reside or attend to matters at the premises after a protection order against him was made place. This is being challenged and he has subsequently successfully applied for, and been granted, an occupation order. I understand this is temporary to allow him to prepare the premises, which he has done, to try and sell what appears to be relationship property. There are parallel hearings in progress in other courts to resolve other matters between the landlords.
As discussed at the hearing, having considered this situation I am satisfied that it clearly falls within the exception detailed in s 5(n) of the RTA. This is the landlords’ home, and they rented out different rooms at different times to the mother of one landlord.
Therefore, if the tenant wishes to progress her claims, she will need to file an application in the Disputes Tribunal. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
Given this jurisdiction (lack of) determination, I have applied suppression to the parties’ details. If it was to be determined by the Disputes Tribunal, its orders are typically not made public. It is considered appropriate to mirror that here.

Order

By way of declaration, the Tenancy Tribunal does not have jurisdiction over the relationship or agreement between the parties.
The application is struck out.

Reasons

Both parties attended the hearing. This was a continuation after a previous case conference. [Suppressed] appeared as counsel for [suppressed]. Mr [suppressed] joined as the second respondent via teleconference.
The earlier case conference minute foreshadowed the preliminary matter to be revisited today was jurisdiction, if so challenged. [Suppressed] challenged the jurisdiction, requesting the application be struck out via the exclusion provision s 5(n) Residential Tenancies Act 1986 (RTA).

Does the Tenancy Tribunal have jurisdiction?

The Tribunal has jurisdiction to determine in accordance with the Act any dispute between a landlord and a tenant which relates to any tenancy to which the Act applies (section 77(1)).
The Act applies to every tenancy for residential purposes except as specifically provided (section 4).
Section 2(1) of the Act defines the meaning of “tenancy” and “residential premises”. A “tenancy”, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. “Premises” includes any part of any premises.
Section 5(1) provides that the Act does not apply in various cases, including 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 a member of their family (section 5(1)(n)).
The meaning of “boarding house” and “boarding house tenancy” are defined by section 66B of the Act. A “boarding house” means residential premises containing 1 or more boarding rooms, along with facilities for communal use by the tenants of the boarding house, that is occupied by at least 6 tenants at any one time. I do not find this situation to be a boarding house due to the number of tenants being less than six during this tenancy. The short-term use of some rooms for residential course accommodation by others is not counted.
Where a party contends that the Act does not apply in respect of any tenancy of residential premises, it is for that party to establish the facts on which it is contended that the Act does not apply (section 10).
The tenant is the mother of one of the landlords. She moved down from North Island in 2022 and purchased a neighbouring property for her horses. She may have contributed financially towards the purchase of the property. During her stay the verbal arrangements were modified but rent was paid, of varying amounts. Some non-cash consideration appears to have been made.
There was no written tenancy agreement until one was drafted by the son and signed by him and his mother on 29 March 2023. By this time the landlords were in a relationship dispute. The son drafted the new agreement as he was aware the informal arrangement to date may disadvantage his mother.
There had earlier been a sale and purchase agreement drafted for signing after the landlords had planned to sell the property and found a vendor. While the sale did not finalise, the completed contract at Schedule 3 in the final draft was blank. This is the section to be completed when a tenancy is included within a sale agreement.
Another issue is whether the premises were principally used as the landlord’s “place of residence” during the tenancy. The words “reside”, and “residence”, connote an element of permanence. In Main v Hooker (CIV-2180/03), 2 February 2004, Judge Green) it was said that a “place of residence” meant the place to which a person would normally go to live, their home. The test when assessing the principal use is not the relative duration of the landlord’s occupation of the premises compared to somewhere else (Musson v Dobrisek (CIV-2006-032-36, 5 May 2006, Judge Broadmore). The complication in this matter was the son was unable to reside or attend to matters at the premises after a protection order against him was made place. This is being challenged and he has subsequently successfully applied for, and been granted, an occupation order. I understand this is temporary to allow him to prepare the premises, which he has done, to try and sell what appears to be relationship property. There are parallel hearings in progress in other courts to resolve other matters between the landlords.
As discussed at the hearing, having considered this situation I am satisfied that it clearly falls within the exception detailed in s 5(n) of the RTA. This is the landlords’ home, and they rented out different rooms at different times to the mother of one landlord.
Therefore, if the tenant wishes to progress her claims, she will need to file an application in the Disputes Tribunal. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
Given this jurisdiction (lack of) determination, I have applied suppression to the parties’ details. If it was to be determined by the Disputes Tribunal, its orders are typically not made public. It is considered appropriate to mirror that here.

Tenancy Tribunal case 4637096 — Boarding House at [location suppressed]

At a glance

Tenancy Tribunal case 4637096 — Boarding House at [location suppressed]

At a glance

Claims & awards

Order

Reasons

Does the Tenancy Tribunal have jurisdiction?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Does the Tenancy Tribunal have jurisdiction?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions