What was Tenancy Tribunal case 4683389 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4683389?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4683389?

The primary dispute was Rent arrears. Related themes: Boarding House.

Where can I read the official tribunal order for case 4683389?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9544930-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4683389 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4683389?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4683389?

The primary dispute was Rent arrears. Related themes: Boarding House.

Where can I read the official tribunal order for case 4683389?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9544930-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4683389 — Rent arrears

Order

The Tribunal orders suppression of the parties’ names and identifying details.
The Tenancy Tribunal lacks jurisdiction to determine the claim.
The application is accordingly dismissed.

Reasons

Both parties attended the hearing which was held by teleconference.
With the Tribunal’s approval and the landlord’s consent, the tenant was represented by [The tenant’s representative] and had the support of his daughter [The tenant/s support person]. The Claim
The landlord seeks an Order for termination of the tenancy, rent arrears and payment of water charges. Background
The relevant circumstances can be set out quite briefly, although there is certainly some complexity to the parties’ situation.
[The landlord/s] is the registered proprietor of the premises. He says he owns the premises in his capacity as sole trustee of the [redacted] Family Trust of which he and his children are beneficiaries but of which his estranged spouse [The tenant/s support person] is not. A copy of the trust deed has not been provided.
[The landlord/s] and [The tenant/s support person] lived in the premises as their home. The tenant and his late wife, who are [The tenant/s support person]’s parents, lived in the premises with them periodically and later moved in.
[The landlord/s] and [The tenant/s support person] moved to another home and an unwritten arrangement was put in place whereby the tenant would occupy the premises and pay rent of $500.00 per week to [The landlord/s]. That is evidenced by records showing payment of the rent from July 2020 to May 2022.
[The landlord/s] and [The tenant/s support person] then separated and there are contested Family Court proceedings underway.
The tenant stopped paying rent to [The landlord/s]. For the tenant, [The tenant’s representative] says that the tenant has in fact been paying rent but has been paying it indirectly - to [The tenant/s support person] in lieu of spousal maintenance obligations said to be owed to her by [The landlord/s]. I have some difficulty with that contention but given my findings about the Tribunal’s jurisdiction to determine this application, I am not required to decide the point. Jurisdiction
There is no doubt that these are residential premises as defined in s.2.
It is a tenancy, defined in s.2 which, “.... 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.”
There is a tenancy agreement, being (s.2) “........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.”
The issue here is whether the tenancy agreement between these parties is excluded from the Residential Tenancies Act by s.5(1)(n) which 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.”
In s.2, “member of the landlord’s or owner’s family, in relation to a landlord or an owner, means— (a) any person who is or has been related to the landlord or owner— (i) by blood; or (ii) by or through marriage, a civil union, or a de facto relationship; or (iii) by adoption.”
[The landlord/s] and the tenant are father-in-law and son-in law. They are related by marriage. The tenant is a member of [The landlord/s] family and the premises are principally used as his residence.
The only remaining question is whether that position is affected if [The landlord/s] owns the premises in his capacity as trustee of the family trust rather than in his personal capacity.
I find that it is not.
The Tribunal’s decision in Mexted v Mexted, Gray and Rusmussen [2021] NZTT Hamilton 4300218, 4297500, contains a thorough and helpful analysis of this issue which I need not repeat here. The key finding, with which I respectfully concur, is that (paragraph 31 of the decision): “As recent Court of Appeal, High Court and Tenancy Tribunal decisions demonstrate, a trust is not a separate legal entity, the assets of a trust are owned by the trustees, and a trustee can have family members. The effect of these principles is that the exclusion contained in s 5(1)(n) of the Act is engaged when a trustee leases trust property to a family member.”
The premises are used principally as a place of residence for the tenant who, as his father-in-law, is a member of [The landlord/s] family. Section 5(1)(n) excludes this tenancy from the provisions of the Act and the Tribunal therefore has no jurisdiction to determine the claim.

Order

The Tribunal orders suppression of the parties’ names and identifying details.
The Tenancy Tribunal lacks jurisdiction to determine the claim.
The application is accordingly dismissed.

Reasons

Both parties attended the hearing which was held by teleconference.
With the Tribunal’s approval and the landlord’s consent, the tenant was represented by [The tenant’s representative] and had the support of his daughter [The tenant/s support person]. The Claim
The landlord seeks an Order for termination of the tenancy, rent arrears and payment of water charges. Background
The relevant circumstances can be set out quite briefly, although there is certainly some complexity to the parties’ situation.
[The landlord/s] is the registered proprietor of the premises. He says he owns the premises in his capacity as sole trustee of the [redacted] Family Trust of which he and his children are beneficiaries but of which his estranged spouse [The tenant/s support person] is not. A copy of the trust deed has not been provided.
[The landlord/s] and [The tenant/s support person] lived in the premises as their home. The tenant and his late wife, who are [The tenant/s support person]’s parents, lived in the premises with them periodically and later moved in.
[The landlord/s] and [The tenant/s support person] moved to another home and an unwritten arrangement was put in place whereby the tenant would occupy the premises and pay rent of $500.00 per week to [The landlord/s]. That is evidenced by records showing payment of the rent from July 2020 to May 2022.
[The landlord/s] and [The tenant/s support person] then separated and there are contested Family Court proceedings underway.
The tenant stopped paying rent to [The landlord/s]. For the tenant, [The tenant’s representative] says that the tenant has in fact been paying rent but has been paying it indirectly - to [The tenant/s support person] in lieu of spousal maintenance obligations said to be owed to her by [The landlord/s]. I have some difficulty with that contention but given my findings about the Tribunal’s jurisdiction to determine this application, I am not required to decide the point. Jurisdiction
There is no doubt that these are residential premises as defined in s.2.
It is a tenancy, defined in s.2 which, “.... 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.”
There is a tenancy agreement, being (s.2) “........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.”
The issue here is whether the tenancy agreement between these parties is excluded from the Residential Tenancies Act by s.5(1)(n) which 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.”
In s.2, “member of the landlord’s or owner’s family, in relation to a landlord or an owner, means— (a) any person who is or has been related to the landlord or owner— (i) by blood; or (ii) by or through marriage, a civil union, or a de facto relationship; or (iii) by adoption.”
[The landlord/s] and the tenant are father-in-law and son-in law. They are related by marriage. The tenant is a member of [The landlord/s] family and the premises are principally used as his residence.
The only remaining question is whether that position is affected if [The landlord/s] owns the premises in his capacity as trustee of the family trust rather than in his personal capacity.
I find that it is not.
The Tribunal’s decision in Mexted v Mexted, Gray and Rusmussen [2021] NZTT Hamilton 4300218, 4297500, contains a thorough and helpful analysis of this issue which I need not repeat here. The key finding, with which I respectfully concur, is that (paragraph 31 of the decision): “As recent Court of Appeal, High Court and Tenancy Tribunal decisions demonstrate, a trust is not a separate legal entity, the assets of a trust are owned by the trustees, and a trustee can have family members. The effect of these principles is that the exclusion contained in s 5(1)(n) of the Act is engaged when a trustee leases trust property to a family member.”
The premises are used principally as a place of residence for the tenant who, as his father-in-law, is a member of [The landlord/s] family. Section 5(1)(n) excludes this tenancy from the provisions of the Act and the Tribunal therefore has no jurisdiction to determine the claim.

Tenancy Tribunal case 4683389 — Rent arrears

At a glance

Tenancy Tribunal case 4683389 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions