What was Tenancy Tribunal case 4666149 about?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4666149?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4666149?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4666149?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9547166-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4666149 about?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4666149?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4666149?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4666149?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9547166-Tenancy_Tribunal_Order.pdf.

44 Gold Street, Albany Heights, Auckland 0632 Tenancy Tribunal Case 4666149 — Boarding House

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The application is dismissed for lack of jurisdiction.

Reasons

The applicants attended this remote teleconference hearing.
Telephone calls were made to [The landlord/s] on the number provided at the allocated hearing time. The calls were not answered. The Tribunal may hear matters in the absence of a party where satisfied that notice of the hearing has been given. I am so satisfied.
The applicant has lodged a range of claims with the Tribunal.
This hearing was solely to consider the issue of jurisdiction only. Essentially, whether the Tribunal has the power to hear the application.
The Tribunal has the power to hear disputes between tenants and landlords. It does not have the power to consider claims relating to flatmates or boarders.
The applicants explained that [The landlord/s] is the owner of the premises and lives at the house with her partner ”Steve”.
Section 5(1)(n) RTA provides that the Act does not apply: “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”.
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house-sharing agreements.
The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.
The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant.
In this matter, the applicants explained that they had exclusive use of a bedroom and ensuite at the house, but that the kitchen, lounge, dining room and laundry were all shared with [The landlord/s] and her partner. In the circumstances as described, I find that the arrangement between the parties was a boarding arrangement and that there were shared or common use areas. The right to occupy included areas used by [The landlord/s] and her partner. It was not the “granny flat” concept referred to in Harding.
The application is dismissed for want of jurisdiction.

Reasons

The applicants attended this remote teleconference hearing.

Telephone calls were made to [The landlord/s] on the number provided at the allocated hearing time. The calls were not answered. The Tribunal may hear matters in the absence of a party where satisfied that notice of the hearing has been given. I am so satisfied.

The applicant has lodged a range of claims with the Tribunal.

This hearing was solely to consider the issue of jurisdiction only. Essentially, whether the Tribunal has the power to hear the application.

The Tribunal has the power to hear disputes between tenants and landlords. It does not have the power to consider claims relating to flatmates or boarders.

The applicants explained that [The landlord/s] is the owner of the premises and lives at the house with her partner ”Steve”.

Section 5(1)(n) RTA provides that the Act does not apply: “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”.

When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.

In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.

The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house-sharing agreements.

The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.

The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.

The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant.

In this matter, the applicants explained that they had exclusive use of a bedroom and ensuite at the house, but that the kitchen, lounge, dining room and laundry were all shared with [The landlord/s] and her partner. In the circumstances as described, I find that the arrangement between the parties was a boarding arrangement and that there were shared or common use areas. The right to occupy included areas used by [The landlord/s] and her partner. It was not the “granny flat” concept referred to in Harding.

The application is dismissed for want of jurisdiction.

Tenancy Tribunal case 4666149 — Boarding House at 44 Gold Street, Albany Heights, Auckland 0632

At a glance

Claims & awards

Tenancy Tribunal case 4666149 — Boarding House at 44 Gold Street, Albany Heights, Auckland 0632

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions