What was Tenancy Tribunal case 4684829 about?

The tribunal order states: The application is dismissed because the Tribunal does not have jurisdiction.

How much money was awarded in case 4684829?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4684829?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4684829?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9594393-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4684829 about?

The tribunal order states: The application is dismissed because the Tribunal does not have jurisdiction.

How much money was awarded in case 4684829?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4684829?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4684829?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9594393-Tribunal_Order_Redacted.pdf.

13 Marion Street, Te Aro, Wellington 6011 Tenancy Tribunal Case 4684829 — Exemplary damages

Order

The application is dismissed because the Tribunal does not have jurisdiction.

Reasons

Both parties attended the hearing. The Marion Hostel Limited was represented by its director.
[The applicant/s] wants the Tenancy Tribunal to find that he had a boarding house tenancy during his 13 week and 5 day stay at The Marion Hostel Ltd. He did not sign a boarding house tenancy agreement or pay a bond, and he frequently had to change beds, because of other bookings. He wants compensation and exemplary damages because of the way his accommodation was ended.
The Marion defended this application, saying the Residential Tenancies Act 1986 (RTA) does not apply because The Marion is a hostel, and is excluded from the RTA.
The questions I have to decide are: • Does [The applicant/s]’s three month stay give him a boarding house tenancy? • Was The Marion providing temporary or transient accommodation which ordinarily lasted for less than 28 days? • Would it make a difference if other people had boarding house tenancies at The Marion at the same time? • Does the Tribunal have jurisdiction to hear the claim? Does [The applicant/s]’s three month stay give him a boarding house tenancy?
The definition of a boarding house in section 66B RTA includes having rooms for sleeping for at least six tenants at any one time, and communal facilities. There must also be an intention that the tenancy will last for 28 days or more, or be a tenancy that does in fact last 28 days or more.
The Marion has more than six sleeping rooms, it has common facilities, and [The applicant/s] stayed for more than 28 days. However, this does not automatically mean he had a boarding house tenancy. This is because I have to take the exemptions set out in section 5 of the RTA into account. Was The Marion providing temporary or transient accommodation which ordinarily lasted for less than 28 days?
The Marion submitted that the RTA does not apply to [The applicant/s]’s stay because The Marion is caught by the exemption set out in section 5(1)(k) of the RTA. This exemption states that the RTA shall not apply where the premises are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time, and there is an agreement entered into for providing temporary or transient accommodation. The Marion has the onus of proving the RTA does not apply. See section 10 RTA.
The Marion said it was established in 2018 to provide temporary and transient accommodation principally for backpackers and travellers. Approximately 90% of guests are from overseas. The website is set up like any other website for a hotel, motel or hostel, and bookings can be made online.
The Marion submitted that [The applicant/s] was a guest at the hostel, in the same way that he would have been a guest in a hotel or motel. His first night was booked using a booking app. It is standard for guests to receive a copy of the terms and conditions when their booking is accepted. One of the terms of stay is that bookings for longer than 15 days are not accepted, and “multiple bookings” will be turned away.
After the first night [The applicant/s] went to reception and booked and paid for his next stay. Usually this was for a week and his longest booking was for 14 days. He stayed in dormitory rooms and the bookings were for different beds in different rooms. The longest stay in the same room and in the same bed was 21 days.
[The applicant/s] provided me with the invoices for his stay. The invoices show accommodation is charged on a daily rate. The daily rate changes depending on the market and what else is happening in Wellington. Some of the stays are described as “long term”.
[The applicant/s] submitted that The Marion used its booking system to avoid the RTA and having obligations as a landlord, but I am more persuaded by the submissions made by The Marion. [The applicant/s]’s accommodation was completely different from a boarding house situation where the tenant has exclusive use of a room or a bed from the start of the tenancy until either party gives notice to terminate the tenancy, and rent is the same each week.
The Marion submitted it is standard procedure for an email to be sent to guests after a booking is made in person at reception as well, and the terms and conditions are part of that email. I have not been provided with copies of these emails and [The applicant/s] denied receiving them, however it seems likely to me that The Marion did send these emails. I am persuaded that this process of confirming the booking with an email would be an agreement entered into for the purposes of providing temporary or transient accommodation that continues to be provided under the agreement — the second part of the section 5(1)(k) exemption.
On the evidence produced, I find that the accommodation provided to [The applicant/s] was intended to be temporary or transient accommodation. I find the accommodation was ordinarily provided for periods of less than 28 days. I find the RTA does not apply to [The applicant/s]’s stay because of the exclusion set out in section 5(1)(k) RTA. Would it make a difference if other people had boarding house tenancies at The

Marion?

[The applicant/s] submitted there were other people staying at The Marion at the same time as him and these people stayed long term and had boarding house tenancies. I am not persuaded by this submission. In Pastroff v LITC Limited, the Tribunal found there was a boarding house tenancy in a backpackers in Wellington. The tenant had never moved in as a backpacker. Accommodation was arranged for him and a note was made when he moved in that this would be an “ongoing booking” at $220 per week. The adjudicator found that LITC Limited had viewed the accommodation as long term from the start, and that it was possible to have long term boarding house tenancies in the same building as the temporary and transient backpackers. See Pastroff v LITC Limited [2020] NZTT Wellington 4238374.
It seems most likely to me that there can be different types of accommodation in the same building, as there was in the Pastroff case. This means that even if there were boarding house tenants saying at The Marion at the same time, this would not make [The applicant/s]’s 13 week stay a boarding house tenancy. The key issue is whether the accommodation was considered to be long term at the start. I find [The applicant/s]’s accommodation was temporary or transient at the start and continued to be provided as temporary or transient accommodation by the regular extensions made at reception.

Does the Tribunal have jurisdiction to hear the claim?

I find the Tribunal has no jurisdiction to consider [The applicant/s]’s claims for compensation and exemplary damages because the section 5(1)(k) RTA exemption applies to his stay at The Marion. The application is dismissed. Suppression
[The applicant/s] made an application for suppression. The landlord did not. The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. The Tribunal also has a discretion to allow suppression. See section 95A RTA.
[The applicant/s] is not the most successful party, but I am using my discretion to allow suppression. The reason he was not successful is because of a jurisdictional question, which can be a difficult area of law. I find there is no public interest in his name being made public.

Order

The application is dismissed because the Tribunal does not have jurisdiction.

Reasons

Both parties attended the hearing. The Marion Hostel Limited was represented by its director.
[The applicant/s] wants the Tenancy Tribunal to find that he had a boarding house tenancy during his 13 week and 5 day stay at The Marion Hostel Ltd. He did not sign a boarding house tenancy agreement or pay a bond, and he frequently had to change beds, because of other bookings. He wants compensation and exemplary damages because of the way his accommodation was ended.
The Marion defended this application, saying the Residential Tenancies Act 1986 (RTA) does not apply because The Marion is a hostel, and is excluded from the RTA.
The questions I have to decide are: • Does [The applicant/s]’s three month stay give him a boarding house tenancy? • Was The Marion providing temporary or transient accommodation which ordinarily lasted for less than 28 days? • Would it make a difference if other people had boarding house tenancies at The Marion at the same time? • Does the Tribunal have jurisdiction to hear the claim? Does [The applicant/s]’s three month stay give him a boarding house tenancy?
The definition of a boarding house in section 66B RTA includes having rooms for sleeping for at least six tenants at any one time, and communal facilities. There must also be an intention that the tenancy will last for 28 days or more, or be a tenancy that does in fact last 28 days or more.
The Marion has more than six sleeping rooms, it has common facilities, and [The applicant/s] stayed for more than 28 days. However, this does not automatically mean he had a boarding house tenancy. This is because I have to take the exemptions set out in section 5 of the RTA into account. Was The Marion providing temporary or transient accommodation which ordinarily lasted for less than 28 days?
The Marion submitted that the RTA does not apply to [The applicant/s]’s stay because The Marion is caught by the exemption set out in section 5(1)(k) of the RTA. This exemption states that the RTA shall not apply where the premises are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time, and there is an agreement entered into for providing temporary or transient accommodation. The Marion has the onus of proving the RTA does not apply. See section 10 RTA.
The Marion said it was established in 2018 to provide temporary and transient accommodation principally for backpackers and travellers. Approximately 90% of guests are from overseas. The website is set up like any other website for a hotel, motel or hostel, and bookings can be made online.
The Marion submitted that [The applicant/s] was a guest at the hostel, in the same way that he would have been a guest in a hotel or motel. His first night was booked using a booking app. It is standard for guests to receive a copy of the terms and conditions when their booking is accepted. One of the terms of stay is that bookings for longer than 15 days are not accepted, and “multiple bookings” will be turned away.
After the first night [The applicant/s] went to reception and booked and paid for his next stay. Usually this was for a week and his longest booking was for 14 days. He stayed in dormitory rooms and the bookings were for different beds in different rooms. The longest stay in the same room and in the same bed was 21 days.
[The applicant/s] provided me with the invoices for his stay. The invoices show accommodation is charged on a daily rate. The daily rate changes depending on the market and what else is happening in Wellington. Some of the stays are described as “long term”.
[The applicant/s] submitted that The Marion used its booking system to avoid the RTA and having obligations as a landlord, but I am more persuaded by the submissions made by The Marion. [The applicant/s]’s accommodation was completely different from a boarding house situation where the tenant has exclusive use of a room or a bed from the start of the tenancy until either party gives notice to terminate the tenancy, and rent is the same each week.
The Marion submitted it is standard procedure for an email to be sent to guests after a booking is made in person at reception as well, and the terms and conditions are part of that email. I have not been provided with copies of these emails and [The applicant/s] denied receiving them, however it seems likely to me that The Marion did send these emails. I am persuaded that this process of confirming the booking with an email would be an agreement entered into for the purposes of providing temporary or transient accommodation that continues to be provided under the agreement — the second part of the section 5(1)(k) exemption.
On the evidence produced, I find that the accommodation provided to [The applicant/s] was intended to be temporary or transient accommodation. I find the accommodation was ordinarily provided for periods of less than 28 days. I find the RTA does not apply to [The applicant/s]’s stay because of the exclusion set out in section 5(1)(k) RTA. Would it make a difference if other people had boarding house tenancies at The

Marion?

[The applicant/s] submitted there were other people staying at The Marion at the same time as him and these people stayed long term and had boarding house tenancies. I am not persuaded by this submission. In Pastroff v LITC Limited, the Tribunal found there was a boarding house tenancy in a backpackers in Wellington. The tenant had never moved in as a backpacker. Accommodation was arranged for him and a note was made when he moved in that this would be an “ongoing booking” at $220 per week. The adjudicator found that LITC Limited had viewed the accommodation as long term from the start, and that it was possible to have long term boarding house tenancies in the same building as the temporary and transient backpackers. See Pastroff v LITC Limited [2020] NZTT Wellington 4238374.
It seems most likely to me that there can be different types of accommodation in the same building, as there was in the Pastroff case. This means that even if there were boarding house tenants saying at The Marion at the same time, this would not make [The applicant/s]’s 13 week stay a boarding house tenancy. The key issue is whether the accommodation was considered to be long term at the start. I find [The applicant/s]’s accommodation was temporary or transient at the start and continued to be provided as temporary or transient accommodation by the regular extensions made at reception.

Does the Tribunal have jurisdiction to hear the claim?

I find the Tribunal has no jurisdiction to consider [The applicant/s]’s claims for compensation and exemplary damages because the section 5(1)(k) RTA exemption applies to his stay at The Marion. The application is dismissed. Suppression
[The applicant/s] made an application for suppression. The landlord did not. The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. The Tribunal also has a discretion to allow suppression. See section 95A RTA.
[The applicant/s] is not the most successful party, but I am using my discretion to allow suppression. The reason he was not successful is because of a jurisdictional question, which can be a difficult area of law. I find there is no public interest in his name being made public.

Tenancy Tribunal case 4684829 — Exemplary damages at 13 Marion Street, Te Aro, Wellington 6011

At a glance

Tenancy Tribunal case 4684829 — Exemplary damages at 13 Marion Street, Te Aro, Wellington 6011

At a glance

Claims & awards

Order

Reasons

Marion?

Does the Tribunal have jurisdiction to hear the claim?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Marion?

Does the Tribunal have jurisdiction to hear the claim?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions