What was the outcome of Tenancy Tribunal case 4675933?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4675933?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4675933?

The primary dispute was Mould & damp.

Where can I read the official tribunal order for case 4675933?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9604584-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4675933?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4675933?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4675933?

The primary dispute was Mould & damp.

Where can I read the official tribunal order for case 4675933?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9604584-Tenancy_Tribunal_Order.pdf.

Waitara, Waitara Tenancy Tribunal Case 4675933 — Mould & damp

Order

The application is dismissed.
By way of declaration, it is noted that the Tenancy Tribunal does not have jurisdiction over the relationship or agreement between the parties.

Reasons

This application was plagued with technological errors. At the first telephone hearing I could hear Ms Niwa give oral evidence but not Ms Burnard. At the second hearing which was convened as an audio-visual hearing to get over the issues at the first hearing, neither could be linked to the hearing. Accordingly, it went ahead by phone, but Ms Niwa was cut off halfway through and I could not get her back.
I then directed that both parties provide their further submissions in writing. Therefore, in order to make this decision I have heard from both parties orally over both hearings, read both their email submissions and read all the evidence they both submitted through the process. I am satisfied both parties were given ample opportunity to provide their evidence and it is in the interests of justice that I make a decision now.
Ms Niwa has made an application to the Tribunal asking that Ms Burnard give them notice in accordance with the Residential Tenancies Act 1986 (“RTA”). It is not disputed that Ms Burnard wishes the Niwas to leave the premise.
Ms Burnard says this was not a tenancy and accordingly the Tribunal does not have jurisdiction over the matter although she does want the Niwas to vacate. Ms Burnard says this is her family home. She lived there, as did her daughter and daughter’s friend. They allowed the Niwas to come and stay in October 2021 because they were in need. She says they have never paid rent, only odd contributions here and there and has provided bank statements to substantiate that.
Ms Burnard is now travelling overseas but her daughter remains in the house with the Niwas. She notes an earlier application to the Tribunal that the Niwas made for the same reason, which Ms Niwa later withdrew on the basis that her and Ms Burnard had agreed on a date (in May 2023) that they would leave.
Ms Niwa initially said in the first hearing they would leave by the 5 th of November but in today’s submission says she wants more time. They still remain at the premise.

Does the Tenancy Tribunal have jurisdiction?

The Tribunal’s general jurisdiction, under s77(1) of the RTA is to: “...determine in accordance with this Act any dispute that— (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time.”
Section 2 RTA provides that a “landlord” and “tenant” are respectively grantor and grantee of a tenancy. “...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...” 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”
Section 5 of the RTA details exclusions to the RTA. S5(n) specifically excludes arrangements where the premises are being used for residence by the landlord. Such a situation may be one where a tenant has flatmates or boarders to help them pay the rent. Accordingly, The Tribunal does not have jurisdiction to hear disputes between tenants and flat mates, only between tenants and landlords.
The onus of proving that this arrangement does not come under the RTA is on M Burnard here, see section 10 RTA: Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
Having assessed the evidence and submissions from both parties, I am satisfied that this was a boarding/guest situation. There is no evidence of rent being paid and Ms Burnard has resided in the home with the Niwas for the majority of the period of occupation and her family remains there. This is the specific situation section 5(n) of the RTA details as excluded from the RTA. Accordingly, this arrangement is excluded from the RTA, and the Tribunal has no jurisdiction over it.
Ms Burnard has revoked her consent for the Niwas to remain in her home, accordingly it may be that they remain their unlawfully. Ms Burnard has the option to make a claim for possession pursuant to section 65 of the RTA or through involving the Police and the Trespass Act 1980. Hopefully the parties can come to agreement and neither process will be necessary.
This claim is dismissed.

Order

The application is dismissed.
By way of declaration, it is noted that the Tenancy Tribunal does not have jurisdiction over the relationship or agreement between the parties.

Reasons

This application was plagued with technological errors. At the first telephone hearing I could hear Ms Niwa give oral evidence but not Ms Burnard. At the second hearing which was convened as an audio-visual hearing to get over the issues at the first hearing, neither could be linked to the hearing. Accordingly, it went ahead by phone, but Ms Niwa was cut off halfway through and I could not get her back.
I then directed that both parties provide their further submissions in writing. Therefore, in order to make this decision I have heard from both parties orally over both hearings, read both their email submissions and read all the evidence they both submitted through the process. I am satisfied both parties were given ample opportunity to provide their evidence and it is in the interests of justice that I make a decision now.
Ms Niwa has made an application to the Tribunal asking that Ms Burnard give them notice in accordance with the Residential Tenancies Act 1986 (“RTA”). It is not disputed that Ms Burnard wishes the Niwas to leave the premise.
Ms Burnard says this was not a tenancy and accordingly the Tribunal does not have jurisdiction over the matter although she does want the Niwas to vacate. Ms Burnard says this is her family home. She lived there, as did her daughter and daughter’s friend. They allowed the Niwas to come and stay in October 2021 because they were in need. She says they have never paid rent, only odd contributions here and there and has provided bank statements to substantiate that.
Ms Burnard is now travelling overseas but her daughter remains in the house with the Niwas. She notes an earlier application to the Tribunal that the Niwas made for the same reason, which Ms Niwa later withdrew on the basis that her and Ms Burnard had agreed on a date (in May 2023) that they would leave.
Ms Niwa initially said in the first hearing they would leave by the 5 th of November but in today’s submission says she wants more time. They still remain at the premise.

Does the Tenancy Tribunal have jurisdiction?

The Tribunal’s general jurisdiction, under s77(1) of the RTA is to: “...determine in accordance with this Act any dispute that— (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time.”
Section 2 RTA provides that a “landlord” and “tenant” are respectively grantor and grantee of a tenancy. “...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...” 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”
Section 5 of the RTA details exclusions to the RTA. S5(n) specifically excludes arrangements where the premises are being used for residence by the landlord. Such a situation may be one where a tenant has flatmates or boarders to help them pay the rent. Accordingly, The Tribunal does not have jurisdiction to hear disputes between tenants and flat mates, only between tenants and landlords.
The onus of proving that this arrangement does not come under the RTA is on M Burnard here, see section 10 RTA: Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
Having assessed the evidence and submissions from both parties, I am satisfied that this was a boarding/guest situation. There is no evidence of rent being paid and Ms Burnard has resided in the home with the Niwas for the majority of the period of occupation and her family remains there. This is the specific situation section 5(n) of the RTA details as excluded from the RTA. Accordingly, this arrangement is excluded from the RTA, and the Tribunal has no jurisdiction over it.
Ms Burnard has revoked her consent for the Niwas to remain in her home, accordingly it may be that they remain their unlawfully. Ms Burnard has the option to make a claim for possession pursuant to section 65 of the RTA or through involving the Police and the Trespass Act 1980. Hopefully the parties can come to agreement and neither process will be necessary.
This claim is dismissed.

Tenancy Tribunal case 4675933 — Mould & damp in Waitara, Waitara

At a glance

Tenancy Tribunal case 4675933 — Mould & damp in Waitara, Waitara

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