What was Tenancy Tribunal case 4674085 about?

The tribunal order states: The application is dismissed. The Tribunal does not have jurisdiction to consider

How much money was awarded in case 4674085?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4674085?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4674085?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9665708-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4674085 about?

The tribunal order states: The application is dismissed. The Tribunal does not have jurisdiction to consider

How much money was awarded in case 4674085?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4674085?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4674085?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9665708-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4674085 — Boarding House

Order

The application is dismissed. The Tribunal does not have jurisdiction to consider the application.

Reasons

Both parties attended this remote teleconference on 20 November 2023.
The premises are at [Tenancy address suppressed]. The “tenancy” commenced on 15 May 2023 and ended soon after on 29 May 2023.
There is a preliminary issue whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 (“RTA”) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises,’ ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises 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 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 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
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
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, I consider the following issues to be relevant;
The parties entered into an agreement called a “Flat/house – sharing agreement” (“the agreement”).
This is not a “boarding house” as defined by the RTA.
The agreement recorded that the agreement was between flatmates and not covered by the terms of the Residential Tenancies Act. Mr Nichol is referred to in the agreement as a flatmate. In the event of a dispute the matter is to be referred to the Disputes Tribunal.
The agreement has been signed by both parties.
The tenant says that he “may” have read the agreement before signing it, but never received a copy of it and that the landlord had not abided by it.
It is of some significance that the parties have recorded their agreement in this manner, but it is certainly not determinative of the matter, as the Tribunal must consider the substance of the agreement between the parties rather than the labels they have applied. The following are relevant.
The landlord is the owner of the premises.
The tenant has had the exclusive use of a bedroom only.
The tenant bedroom is not self-contained in any manner.
The landlord and his wife lived at the premises.
All parties had the shared use of the kitchen, lounge, laundry, dining room, lounge and entrances to the premises.
The tenant said that he did not consider himself to be a boarder because he was not provided with meals. The provision of meals is not a legal prerequisite for being a boarder.
The right to occupy did include areas used by the landlord or her family. There were shared or common use areas.
For the reasons set out above, I consider that this was a genuine boarder/ flatmate situation and that the Tribunal does not have jurisdiction to consider the dispute. The tenant retains the right to have his dispute considered in the Disputes Tribunal.
Both parties have applied for name suppression. The landlord has been wholly successful and suppression of the landlord name and details is ordered. The tenant has not been wholly or substantially successful and his application for suppression is dismissed.

Order

The application is dismissed. The Tribunal does not have jurisdiction to consider the application.

Reasons

Both parties attended this remote teleconference on 20 November 2023.
The premises are at [Tenancy address suppressed]. The “tenancy” commenced on 15 May 2023 and ended soon after on 29 May 2023.
There is a preliminary issue whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 (“RTA”) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises,’ ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises 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 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 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
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply.
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, I consider the following issues to be relevant;
The parties entered into an agreement called a “Flat/house – sharing agreement” (“the agreement”).
This is not a “boarding house” as defined by the RTA.
The agreement recorded that the agreement was between flatmates and not covered by the terms of the Residential Tenancies Act. Mr Nichol is referred to in the agreement as a flatmate. In the event of a dispute the matter is to be referred to the Disputes Tribunal.
The agreement has been signed by both parties.
The tenant says that he “may” have read the agreement before signing it, but never received a copy of it and that the landlord had not abided by it.
It is of some significance that the parties have recorded their agreement in this manner, but it is certainly not determinative of the matter, as the Tribunal must consider the substance of the agreement between the parties rather than the labels they have applied. The following are relevant.
The landlord is the owner of the premises.
The tenant has had the exclusive use of a bedroom only.
The tenant bedroom is not self-contained in any manner.
The landlord and his wife lived at the premises.
All parties had the shared use of the kitchen, lounge, laundry, dining room, lounge and entrances to the premises.
The tenant said that he did not consider himself to be a boarder because he was not provided with meals. The provision of meals is not a legal prerequisite for being a boarder.
The right to occupy did include areas used by the landlord or her family. There were shared or common use areas.
For the reasons set out above, I consider that this was a genuine boarder/ flatmate situation and that the Tribunal does not have jurisdiction to consider the dispute. The tenant retains the right to have his dispute considered in the Disputes Tribunal.
Both parties have applied for name suppression. The landlord has been wholly successful and suppression of the landlord name and details is ordered. The tenant has not been wholly or substantially successful and his application for suppression is dismissed.

Tenancy Tribunal case 4674085 — Boarding House

At a glance

Claims & awards

Tenancy Tribunal case 4674085 — Boarding House

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