What was Tenancy Tribunal case 4680233 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 4680233?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4680233?

The primary dispute was Cleanliness. Related themes: Healthy homes, Boarding House.

Where can I read the official tribunal order for case 4680233?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9546025-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4680233 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 4680233?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4680233?

The primary dispute was Cleanliness. Related themes: Healthy homes, Boarding House.

Where can I read the official tribunal order for case 4680233?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9546025-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4680233 — Cleanliness

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
The tenancy is a residential tenancy. The tenancy is subject to the Residential Tenancies Act 1986 and the jurisdiction of the Tribunal.
The termination notice issued by the landlord is of no effect.

Reasons

Both parties attended the hearing.
The parties seek a determination from the Tribunal as to whether this tenancy is a residential tenancy (the tenant’s position) or a boarding arrangement, excluded from the Act by section 5(1)(n) (the landlord’s position).
For the reasons outlined below, I am not satisfied that s5(1)(n) applies. Accordingly, this is a residential tenancy to which the Act applies. Background
The background to the arrangement is largely agreed.
The landlord has resided in the property for a number of years, having built it in 1999 with her late husband. The premises includes a studio (“the studio”), with a mezzanine floor, which was originally used as an office and counselling rooms by the landlord’s husband. The mezzanine was used for office space and as a spare bedroom when family stayed. The studio has a bathroom and shower.
The studio was later fitted out with a kitchenette and used as Airbnb accommodation. Following Covid-19 restrictions that ceased, and the landlord was eventually approached by an international PHD student seeking boarder style accommodation. The landlord agreed to that, and the arrangement was successful. That boarder moved out some time in mid-2022.
The tenant was previously living and working independently in [Suburb]. Unfortunately, she suffered a serious traumatic brain injury in an accident. Following discharge from hospital, the tenant resided with her mother and stepfather in the same area as the landlord. The tenant was, and still is, supported by ACC in her recovery. Her parents play an important role in her recovery also.
As the tenant recovered, she sought further independence, and an approach was made to the landlord, who was an acquaintance of the tenant’s mother.
The parties entered into an agreement noted as “Terms of Tenancy”. Which included provisions for the payment of rent, which included water, power and Wi- Fi. The agreement included 4 weeks’ notice to end the tenancy and provided the tenant with exclusive use of the studio, deck, and car park at the top of the drive. A series of “quirks of the Studio and house rules” were provided and signed as part of the agreement.
There is an internal door between the house and the studio, however the tenant did not have a key to that door. Access to the studio was via the ranch slider off the deck.
The tenant moved into the property on 17 March 2023.
Other than the shared utilities, there was little mingling or socialising between the landlord and tenant, beyond general conversation in the garden. As the landlord stated, “she respected my privacy and I respected hers.”
Unfortunately, about two months into the tenancy, the relationship soured. The landlord entered the studio to close a window while the exterior of the premises was water blasted. That landlord was not happy with the state of cleanliness of the premises, and the tenant was upset by that. This situation arose again shortly later. The landlord describes the tenant as “defensive and confrontational”. The tenant said words, to the effect, that communication should be in writing.
The landlord then sought to terminate the tenancy on notice as set out in the agreement. The tenant challenged that notice, stating that the relationship is a residential tenancy and there are no grounds to terminate the tenancy.
The applications to the Tribunal followed. The Law
Section 4 provides that This Act applies to every tenancy for residential purposes except as specifically provided
The exceptions to the Act are contained in Section 5. Relevantly, section 5(1)(n) of the Act provides that 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.
“Residential premises” is defined in section 2(1) of the Act as 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” is defined in section 2 of that Act as including: (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.
Section 10 of the Act provides that 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.
So, in the present case, the landlord must prove, on the balance of probabilities, that section 5(1)(n) applies.
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.

Were the premises occupied as a separate household unit?

The tenant had very little interaction with the landlord. As stated, there were shared facilities, but other than that the tenant and landlord lived independently.
As the dwelling is a building, the requirements of the Building Act 2004 (“the Building Act”) apply to it.
One of the types of buildings categorised in the Building Act is called a “household unit”.
A household unit is defined in section of 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”
The Tenancy Tribunal deals predominantly with household units (with the exception of boarding houses).
The question of whether a premises is a separate household unit arose in the recent High Court decision Harding v Schellevis & Ors [2021] NZHC 1265.
In that case, the landlord entered into a “flatmate/house-sharing agreement” with the tenants, which expressly recorded an acknowledgement that the premises were the primary residence of the landlord’s family and that therefore the Act did not apply (see section 5(n) exclusion).
However, the [City Council] previously confirmed to the landlord that the premises could not be tenanted as a separate household unit (e.g. no fire rated walls etc).
Analysing the actual situation, the Tribunal determined that the Act did apply and that the building consisted of two separate and distinct household units.
The landlord appealed that finding to the District Court, which confirmed the Tribunal’s finding, and dismissed the landlord’s appeal.
The landlord then appealed to the High Court and the High Court confirmed both the District Court and Tribunal’s decision.
Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the tribunal and conversely a strict approach to exceptions; d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.” Analysis
Determination of whether the exceptions in section 5 of the Act apply are fact specific.
I consider that I am bound by the findings as to the law of the High Court in Harding v Schellevis & Ors and the District Court in Adams v Lucas.
I also consider the definition of “flatmates” set out by the District Court in Musson v Dobrisek CIV-2006-032-36, 5 May 2006, is useful. The Court noted, at paragraph [22]: By 'flatmates' I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.
I do not consider that the label put on the agreement is determinative of the nature of the relationship, although it is relevant. It is one of the factors I can take into account when determining the true nature of the relationship. It was signed by the parties, and clearly forms part of the factual matrix for this matter.
Section 11 of the Act prohibits the parties from contracting out of the Act. The Act applies, and the Tribunal has jurisdiction, unless one of the exceptions in section 5 applies. Accordingly, I must determine the nature of the relationship as a matter of fact
If the house as a whole was the relevant “premises” then I would easily conclude that section 5(1)(n) applied in this case.
However, I find that is not the case, rather I consider that the studio is a separate premise to the rest of the house. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”
The factors in favour of this are the separate entrance, facilities and living areas. There was no communal living, or shared space. I accept the evidence that the tenant was not entitled to access the full house and that the tenant has “exclusive use” of the studio.
While this was physically one building, there were two separate and distinct household units within that building.
Accordingly, the relevant “premises” for the purposes of section 5(1)(n) is the studio only.
The question, then, is whether the studio “continue[s] 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.”
It is clear that the studio is not used principally as a place of residence for the landlord or a member of her family.
Bearing in mind the above, my finding in this proceeding is that the tenant occupied the studio as “a self-contained separate household unit”.
Accordingly, section 5(1)(n) does not apply. The tenancy is a residential tenancy, subject to the provisions of the Act and the Jurisdiction of the Tribunal.
Tenancies can only be terminated in accordance with the provisions of the Act. The notice given by the landlord does not meet any of these provisions and is of no effect.
As discussed at the hearing, my finding that this is a residential tenancy means that the requirements of the Healthy Homes Standards apply to this premises. The time for compliance has likely now passed, and the landlord should take independent advice in this respect.
For completeness, I considered the provisions of section 55B of the Act and discussed this briefly with the parties during the hearing.
Section 55B of the Act allows a landlord to apply to the Tribunal for an order terminating a periodic tenancy on the basis of hardship. The Tribunal may make such an order only if satisfied that without it, the landlord would suffer greater hardship than the tenant, and that, because of that hardship it would be unreasonable to require the landlord to continue to tenancy. The impact that terminating the tenancy would have on the tenant is a mandatory consideration with deciding whether it would be unreasonable to require the landlord to continue the tenancy.
As things stand, there is insufficient evidence to make such an order, and I am mindful that the landlord has not included that as part of the application. Accordingly, no such order is made.
That said, I am mindful that this arrangement is not what the landlord anticipated at the time of signing the agreement, and the finding that this is a residential tenancy will have significant flow on effects for both parties. Both parties may wish to give consideration to this and may make further applications if required.
I have ordered suppression of the names and identifying details of both parties on the basis that this was an application that required determination by the Tribunal, but which does not attract sufficient public interest to off-set the privacy interests of both parties, particularly taking into account the background of this matter.
Finally, I wish to record that both parties are to be commended for the open and courteous way they conducted themselves in the hearing, despite what has obviously been a fraught process for both.

Tenancy Tribunal case 4680233 — Cleanliness

At a glance

Tenancy Tribunal case 4680233 — Cleanliness

At a glance

Claims & awards

Order

Reasons

Were the premises occupied as a separate household unit?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Were the premises occupied as a separate household unit?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions