What was Tenancy Tribunal case 4638849 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 4638849?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4638849?

The primary dispute was Smoke alarms. Related themes: Cleanliness, Property damage, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4638849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10554904-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4638849 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 4638849?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4638849?

The primary dispute was Smoke alarms. Related themes: Cleanliness, Property damage, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4638849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10554904-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4638849 — Smoke alarms

Order

An application for suppression has been made in this case, and the Tribunal orders interim suppression of the tenant and landlord’s name and identifying details until further order in this application.
The hearing is adjourned.
A further 360 minutes should be allowed for the next hearing of this matter, scheduled before me at this court on the next available date.
The Tribunal has jurisdiction to hear the claims filed by the tenant and the landlord in respect of the tenant’s occupation of cabin [Tenancy address suppressed].
The tenancy in respect of the tenant’s occupation of cabin [Tenancy address suppressed] is not a boarding house tenancy.
The tenant’s application is amended to include a claim for compensation for a notice that she says is retaliatory.
If either party intends to produce any further evidence at the next hearing, they must send these to the Tenancy Tribunal by 4pm on Monday 24 June 2024. They can be filed by email or two hard copies provided. If this is not done, then they must bring two copies (plus a copy for themselves) of any document they wish to rely on to the next hearing.

Reasons

Both parties attended the hearing that was set down to consider jurisdiction. The hearing
[The tenant/s] requested to be able to leave during the course of the hearing because she says she found listening to [The landlord/s] too frustrating. She left as she wished and returned to present her own submissions and evidence. She then chose to leave again before the end of the hearing.
The parties bought witnesses to the Tribunal, but I did not hear from them on this occasion. This is because [The landlord/s] confirmed his witnesses related to the substantive application rather than jurisdiction. Some of [The tenant/s] witnesses also related to the substantive application rather than jurisdiction. One of [The tenant/s] witnesses was not available when she wanted to call her and so I could not hear from her.
[The tenant/s] was concerned she might not be able to make the next hearing due to ill health. As stated at the hearing and in a previous order [The tenant/s] should appoint a fully briefed representative if she is unable to attend a future hearing due to her ill health. [The landlord/s] may also appoint a representative if he so wishes. A representative is permitted as of right in this case due to the sums claimed (s 93(2)(b), Residential Tenancies Act 1986 (RTA)). The application by the tenant
At the start of the hearing, I asked the tenant why she had not complied with my earlier order to clarify the accommodation to which her application related and the content of her application. She says she has been unwell, so she did not comply. While this may be the case, my order requiring this was made on 26 March 2024, so the tenant has had ample opportunity to comply. [The landlord/s] must have adequate notice of the claim which he must answer to, both in relation to the substantive issues, but also in relation to jurisdiction.
I must therefore first decide how to proceed because the tenant now says she wants to bring her case both in relation to other accommodation she lived in that she says was by the office (trading was [redacted]) and the cabin where she lived in just before she moved out. [The landlord/s] says this cabin the tenant lived is called “[suite 1]”. This is shown in the documentation filed. I have adopted this name to describe the cabin in this decision.
The tenant’s application form refers to [Holiday Park] as the respondent and referred, in part to a claim for retaliatory notice for a recent 48-hour eviction. [Holiday Park], [The landlord/s] confirmed, is the trading name for the camp site part of his operations where [suite 1] is located.
Both the name in which the case has been bought by the tenant and the fact the case includes a claim for retaliatory notice for (at the time of making the application) a recent termination, shows that the premises that the tenant’s application relates to is [suite 1]. This is because [The tenant/s] was living in [Suite 1] at the time she made the application and this is the premises that she would require a ‘retaliatory letter’ for.
There is nothing to suggest in the tenant’s application that she is making claims in relation to earlier accommodation she lived in. The tenant accepted that neither the Tribunal nor [The landlord/s] would know this from the application itself.
I am satisfied that the application as filed is sufficiently clear so that [The tenant/s] application as filed may proceed in relation to her occupation of [suite 1]. I therefore allowed the tenant to proceed on this basis. This application by the tenant will therefore deal with claims relating to [suite 1] as set out on the tenant’s application.
Further, during the course of the hearing the tenant also clarified that she wanted me to shut down the operations of the campground or to order an audit of it. I expressed these would not be orders that the Tribunal would make and therefore [The tenant/s] said she would want instead to claim compensation due to the retaliatory notice. The tenant’s application is amended to reflect this. Background
[The landlord/s] operates a campground. [The landlord/s] says that the campground has an occupancy of approximately 100 people comprising of a range of cabins and campsites as well as a communal kitchen, bathrooms, dining hall, BBQ area and conference facilities.
[The tenant/s] lived in a cabin ‘[Suite 1]’ at the campground with her four children from 3 June 2023 to 29 August 2023.
[Suite 1] is a cabin designed, [The landlord/s] says, for a family or a group of adults wanting to stay in the campground. [Suite 1] has a queen-sized bed and 4 other beds (being bunk beds). [Suite 1] is joined to another cabin which [The landlord/s] calls [Suite 2]. [Suite 2] has 1 queen bed and 2 more beds (being bunk beds). I heard how [suite 1] and [suite 2] are entirely separate rooms (a wall divides them) but how they are in the same building and share the same roof. [Suite 1] and [suite 2] have their own entrance/exit doors that open immediately into the campground itself.
There was some confusion at the hearing as to whether there was a microwave and/or fridge for these cabins. However, both parties did later agree that the occupants of [suite 1] and [SUITE 2] do not have any cooking facilities in the cabins and the occupants need to use the shared campground kitchen. The occupants of [suite 1] and [suite 2] also use the campsite’s bathroom. Both the bathroom and kitchen are also used by others staying at the campground.
[Neighbour] and her children occupied FS2 for the entire time [The tenant/s] lived in FS1. [Neighbour] is the tenant in [2024] NZDC 1862 and [2024] NZDC 1862 that I have referred to below.

Is this an excluded tenancy?

In his application [The landlord/s] set out that jurisdiction would be disputed until the conclusion of an appeal relating to [redacted]. This appeal has now concluded.
In the above decision I determined that the occupancy of [neighbour] of a cabin at the [Holiday Park] was a residential tenancy. [The landlord/s] unsuccessfully sought to exclude her tenancy by virtue of sections 5(1)(k) RTA (temporary or transient accommodation), section 5(1)(a) RTA (campgrounds) and section 5(1)(y) RTA (emergency and transitional accommodation). In [redacted] v [redacted] [2024] NZDC 1862 Judge Greig in the District Court dismissed [The landlord/s] appeal and adopted my reasoning in full (at paragraph 14 of Judge Greig’s decision).
Following these decisions [The landlord/s] does not now consider that any exclusion to the RTA applies in respect of [The tenant/s] occupation of [suite 1]. He says [The tenant/s] circumstances are very similar to those of [neighbour] and he says that he considers that he should not let people stay at the campground for more than 50 days following the decision of Judge Greig.
The tenant considers the RTA to apply. She says she had a tenancy.
The onus of proof lies on the party who contends the RTA does not apply in respect of the tenancy of residential premises. It is for that party to establish the facts upon which it is contended that the RTA does not apply (s 10, RTA).
[The landlord/s] does not seek to establish any such facts and neither does [The tenant/s]. Further, [The landlord/s] says that [The tenant/s] arrangement was very similar to that of [neighbour] where the District Court (and myself) I have previously found no exclusion to apply.
I am therefore satisfied the Tribunal has jurisdiction. In other words, I am not satisfied that any exclusion of the RTA applies.
However, this is not the end of the matter because although he does not dispute jurisdiction, [The landlord/s] says that [The tenant/s] tenancy is a boarding house tenancy. Is [The tenant/s] tenancy a boarding house tenancy?
As explained at the hearing the RTA makes some different provisions for the operation of tenancies where a tenancy is a boarding house tenancy.
Section 66B RTA provides the following definitions: Boarding house means residential premises— (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time Boarding house tenancy means a residential tenancy in a boarding house (a) that is intended to, or that does in fact, last for 28 days or more; and (b) under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house Boarding house tenancy agreement means a tenancy agreement (as defined in section 2(1) RTA) relating to a boarding house tenancy. Residential premises (as defined in section 2(1) RTA) 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. Premises in relation to a boarding house means the boarding house, comprising the boarding rooms and all the facilities of the boarding house; and includes any part of any premises (s 66B, RTA). Premises (other than in relation to a boarding house tenancy, in which case the definition in section 66B applies) includes (a) any part of any premises; and (b) any land and appurtenances, other than facilities; and (c) any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land (s 2, RTA). Tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective tenant; and (b) a former tenant; and (c) a lawful successor in title of a tenant to the premises; and (d) the personal representative of a deceased tenant; and (e) an agent of a tenant (s 2, RTA). 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 (s 2, RTA).
In the High Court decision of Karmarkar v Pandem [2018] NZHC 639 Bohemen J set out the relevant questions when deciding whether the tenancy is a boarding house tenancy: [34] In my view, it is possible to make sense of the definitions by asking the following questions: (a) Does the house contain one or more bedrooms along with facilities for communal use by the tenants? (b) Is the house occupied or intended to be occupied by 6 or more tenants? (c) Is the tenancy intended to, or does in fact, last for 28 days or more? (d) Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use? (e) Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants?
[The landlord/s] says that there is a boarding house in this case and that the boarding house is [suite 1] and [suite 2] together. They are joined as one building. He says this is because more than six people can be accommodated there.
What label a landlord puts on a tenancy is not determinative. Whether the premises are a boarding house and the agreement a boarding house tenancy requires consideration of the definition in the RTA and the substance of the arrangement.
[The tenant/s] questioned how the premises could now be a boarding house when a decision had already found that [neighbour] (in [SUITE 2]) had a standard tenancy. However, how a premises is classified can change according to the facts and the evidence presented to the Tribunal (see for example, [Redacted] v [Redacted] [2021] NZTT Auckland 4272996).
Nevertheless, I find [The landlord/s] argument that [SUITE 1] and [SUITE 2] together are a boarding house cannot succeed for the reasons set out below.
Section 66A requires a boarding house to be: “occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”. Unsurprisingly, this is repeated the second test in Karmarkar v Pandem [2018] NZHC 639. I find that this requirement is not met here.
The requirement relates to “six tenants” and not six occupants or able to accommodate six people. While I accept that there were multiple people living in or residing in [suite 1] and [suite 2] the evidence does not establish that there were “six tenants”. As set out above, a tenant is a defined term in the RTA. Simply living in a premises does not make a person a tenant. The definition of a tenant makes this clear.
While reference was made to children staying with [neighbour] in [suite 2] and [The tenant/s] in [SUITE 1] there was no evidence that the children were tenants of [suite 1] or [SUITE 2].
Evidence and submissions establish [The tenant/s] as the sole tenant in [suite 1]. This is because her name is the only name on the paperwork when moving into [suite 1] on the tax invoice. While her husband’s name is on the paperwork when she moved out of the room she occupied (by the office) there was no suggestion that he was a tenant (or even lived in) [suite 1]. To the contrary, I heard from both parties that [The tenant/s] was moved to [suite 1] due to issues relating to that relationship. [The landlord/s] did not suggest that her children, who were the only other people who lived in [suite 1], were tenants.
I accept that [neighbour] was occupying [SUITE 2] for the entire time that [The tenant/s] lived in [SUITE 1]. [The landlord/s] did not explore [neighbour]’s tenancy in detail but reference was made to [redacted] and the appeal [2024] NZDC 1862 referred to above. These decisions established that [neighbour] was a tenant at [suite 2]. [The landlord/s] did not suggest that her children, who were the only other people who lived in [suite 2], were tenants.
Indeed, unless any of the children referred to were adult children there would be difficulties around enforceability in any event (Contract and Commercial Law Act 2017).
I am therefore satisfied on the basis of the evidence presented to me that only two tenants, [The tenant/s] and [neighbour], occupied the ‘boarding house’ (being [suite 1] and [suite 2]) that [The landlord/s] has identified.
What then is the position given that the number of potential tenants might be six or more given the number of available beds?
Four seasons Realty Limited v Matchitt [2023] NZDC 21359 considered this point. This decision confirmed that the question around whether there are six (or fewer) tenants to make the premises a boarding house is based on the number of people living there during the tenancy in question and it is not the number that potentially could have lived there.
The District Court in this case considered an appeal from the Tribunal to decide whether Ms Matchitt had entered into a boarding house tenancy. In this case there were five bedrooms in the house and so whether or not the property could be a boarding house depended on at least one of the rooms being occupied by a couple. Evidence was that sometimes the property had six tenants and sometimes it had had five. There were only five when Ms Matchitt lived there.
Nothing that: “Section 66B of the Act clearly requires the home to be occupied or intended by the landlord to be occupied by at least six tenants at one time”. The District Court posed the question “was the premises intended by the landlord to be occupied by six tenants at one time?” and concluded the answer was no.
The District Court held that while there may have been times when the landlord was prepared to have six or more tenants, clearly there were other times when the landlord was prepared to for there to be only five tenants and thus “it cannot be said that they intended at the relevant time to for the premises to be occupied by six or more”.
The District Court accepted this may bring about ambiguity (because a house could go from a standard tenancy with five or fewer tenants to a boarding house with six or more) but noted this was something the landlord had control over by ensuring the quota of six was met. The Court concluded that by not doing this the landlord’s had converted the tenancy into a standard tenancy.
During the course of the hearing [The landlord/s] said that a group of adults might stay there (rather than a family including adults and children) to save money but this was in the context of his transient guests rather than in the context of placing six tenants in the two rooms. There was no other evidence from [The landlord/s] about an intention to have six tenants in the boarding house he identified.
In any event, at the relevant time there were actually only two tenants. Following the findings in Four Seasons Realty Limited v Matchitt [2023] NZDC 21359 it cannot be said therefore that [The landlord/s] intended at the relevant time for the boarding house he identified to be occupied by six or more tenants.
I have carefully considered the decision in [redacted] which found that there was a boarding house tenancy at [Holiday Park]. Adjudicator Tam made a finding of fact in that case that the holiday park contained one or more boarding rooms along with facilities for communal use by it tenants and was in fact occupied, or was intended to be occupied by at least six tenants at any one time. [The landlord/s] did not argue that the campground as a whole is the boarding house in this case and in any event, I am unable to make this finding of fact based on the evidence submitted in this case.
I therefore find that [The tenant/s] tenancy is a standard or ordinary tenancy rather than a boarding house tenancy. Next steps
The parties will be notified in writing of the date of the next hearing by Tenancy Services. The next hearing will deal with the detail of the claims made in the applications filed by both the landlord and the tenant.
If either party intends to produce any further evidence at the next hearing, they must send these to the Tenancy Tribunal by 4pm on Monday 24 June 2024. They can be filed by email or two hard copies provided. If this is not done, then they must bring two copies (plus a copy for themselves) of any document they wish to rely on to the next hearing. Suppression
In my order dated 19 September 2023 I awarded interim name suppression to both parties. This interim order was continued in my order dated 26 March 2024. Interim name suppression continues. This is because both parties have filed applications and it is not presently possible to ascertain who will be wholly or substantially succeeded in these proceedings (s 95A, RTA).
Suppression will be considered again at the next hearing.

Tenancy Tribunal case 4638849 — Smoke alarms

At a glance

Tenancy Tribunal case 4638849 — Smoke alarms

At a glance

Claims & awards

Order

Reasons

Is this an excluded tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is this an excluded tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions