What was Tenancy Tribunal case 4699276 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 4699276?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4699276?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4699276?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10171929-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4699276 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 4699276?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4699276?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4699276?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10171929-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4699276 — Boarding House

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The applicant’s application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
At the hearing I told the parties I would hear and determine the issue of jurisdiction first, before hearing the tenant’s substantive claim.
The tenant argued that the Residential Tenancies Act 1986 (“RTA”) applies to her relationship with the landlords because: a. She signed a boarding house tenancy agreement that confirms the landlord intended to create a boarding house; b. Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”; c. The house has 4 bedrooms and could house 4 couples, including the landlords; and d. The landlords intended the house to be occupied by 6 or more tenants, but they had been unable to attract enough tenants to meet their intended 6 tenant target. However, the tenancy agreement accurately reflects their intention.
For the reasons outlined below, I am satisfied that this is not a boarding house and s 66B of the RTA does not apply and the exception described in s 5(1)(n) of the RTA does apply. Consequently, there is no residential tenancy to which the Act applies. Jurisdiction
The landlords, being the wholly successful party is entitled to name suppression but did not request name suppression during the hearing.
The tenant made an application on the application form for her name and identifying details to be suppressed. The tenant was under a reasonable belief, based on the tenancy agreement she signed, that she was a tenant covered by the RTA.
The public interest in this matter does not outweigh the significant duress publishing the tenant’s name could result in when she applies for future tenancies. I therefore grant her suppression of her name and identifying details.

Is this a boarding house tenancy?

Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
The landlords are a middle-aged couple who claimed that they wanted to bring in a maximum of three tenants to assist them to pay their mortgage. They gave evidence that this is the only property they own, they reside in the top level of the three-level dwelling, their floor is not separate from the rest of the house, and they share all the facilities in the house with the tenant. They accepted that they had used an incorrect agreement with the tenant and that they should have used a flat sharing agreement.
The tenant argued that the landlords used the boarding house tenancy agreement as they always intended to have 6 tenants plus themselves living in the property and, but for them not being able to attract that number of tenants, this would have been a boarding house situation and s66B of the RTA applies.
The landlords were clear that they never had that intention, the tenant was the only person that has ever lived in the house with them and during her tenancy with them it was only ever the 3 of them in the house. No other tenants ever came to view, let alone live in the house.
I prefer the evidence of the landlords over the tenants in that it is highly improbable that a middle-aged couple would want to live in a 4 bedroom and 3 bathroom house with 3 other couples and their evidence that they never intended to do so was compelling. In addition, the boarding house tenancy agreement was the only evidence of the alleged intent, and the landlords appeared genuine when they confirmed that they had used this document in error as they were not aware of the legal difference between this and a flat sharing agreement. They say they never intended this document to show that they intended to fill the 4-bedroom house with 8 persons.
I am satisfied that the landlords never envisaged setting up a boarding house and that s66B of the RTA does not apply to the relationship between them and the applicant. The law and whether the landlord continue to use the premises principally as their place of residence
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 41B Peach Road, Glenfield, Auckland (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the Act as follows: “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 ....”.
Section 5 of the Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...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.”
The parties confirmed that for the duration of the tenancy, the landlords lived on the third level of the house and shared kitchen, dining, lounge and laundry facilities with the tenant, and both had access to and use of the yard. They also confirmed that the house was one single dwelling and the landlords’ areas of the house were not separate to that of the tenant. The parties description was that the tenant rented a bedroom and her room was locked and only accessible by her, as was the landlords’ bedroom.
Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
In reality, the landlords granted the right to the tenant as a flatmate to occupy a bedroom and to share the other household facilities with them and up to 2 other flatmates at any one time.
Section 10 of the Act states: “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.”
The Landlord has proven, on the balance of probabilities, that s 5(1)(n) applies by proving that they continued to use the premises as their principal place of residence during the flatmate’s tenure and that s66B of the RTA does not apply.
Therefore, the applicant’s claim that she was a tenant that is covered by the provisions of the Act must fail. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
The applicant has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The applicant’s application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
At the hearing I told the parties I would hear and determine the issue of jurisdiction first, before hearing the tenant’s substantive claim.
The tenant argued that the Residential Tenancies Act 1986 (“RTA”) applies to her relationship with the landlords because: a. She signed a boarding house tenancy agreement that confirms the landlord intended to create a boarding house; b. Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”; c. The house has 4 bedrooms and could house 4 couples, including the landlords; and d. The landlords intended the house to be occupied by 6 or more tenants, but they had been unable to attract enough tenants to meet their intended 6 tenant target. However, the tenancy agreement accurately reflects their intention.
For the reasons outlined below, I am satisfied that this is not a boarding house and s 66B of the RTA does not apply and the exception described in s 5(1)(n) of the RTA does apply. Consequently, there is no residential tenancy to which the Act applies. Jurisdiction
The landlords, being the wholly successful party is entitled to name suppression but did not request name suppression during the hearing.
The tenant made an application on the application form for her name and identifying details to be suppressed. The tenant was under a reasonable belief, based on the tenancy agreement she signed, that she was a tenant covered by the RTA.
The public interest in this matter does not outweigh the significant duress publishing the tenant’s name could result in when she applies for future tenancies. I therefore grant her suppression of her name and identifying details.

Is this a boarding house tenancy?

Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
The landlords are a middle-aged couple who claimed that they wanted to bring in a maximum of three tenants to assist them to pay their mortgage. They gave evidence that this is the only property they own, they reside in the top level of the three-level dwelling, their floor is not separate from the rest of the house, and they share all the facilities in the house with the tenant. They accepted that they had used an incorrect agreement with the tenant and that they should have used a flat sharing agreement.
The tenant argued that the landlords used the boarding house tenancy agreement as they always intended to have 6 tenants plus themselves living in the property and, but for them not being able to attract that number of tenants, this would have been a boarding house situation and s66B of the RTA applies.
The landlords were clear that they never had that intention, the tenant was the only person that has ever lived in the house with them and during her tenancy with them it was only ever the 3 of them in the house. No other tenants ever came to view, let alone live in the house.
I prefer the evidence of the landlords over the tenants in that it is highly improbable that a middle-aged couple would want to live in a 4 bedroom and 3 bathroom house with 3 other couples and their evidence that they never intended to do so was compelling. In addition, the boarding house tenancy agreement was the only evidence of the alleged intent, and the landlords appeared genuine when they confirmed that they had used this document in error as they were not aware of the legal difference between this and a flat sharing agreement. They say they never intended this document to show that they intended to fill the 4-bedroom house with 8 persons.
I am satisfied that the landlords never envisaged setting up a boarding house and that s66B of the RTA does not apply to the relationship between them and the applicant. The law and whether the landlord continue to use the premises principally as their place of residence
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 41B Peach Road, Glenfield, Auckland (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the Act as follows: “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 ....”.
Section 5 of the Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...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.”
The parties confirmed that for the duration of the tenancy, the landlords lived on the third level of the house and shared kitchen, dining, lounge and laundry facilities with the tenant, and both had access to and use of the yard. They also confirmed that the house was one single dwelling and the landlords’ areas of the house were not separate to that of the tenant. The parties description was that the tenant rented a bedroom and her room was locked and only accessible by her, as was the landlords’ bedroom.
Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
In reality, the landlords granted the right to the tenant as a flatmate to occupy a bedroom and to share the other household facilities with them and up to 2 other flatmates at any one time.
Section 10 of the Act states: “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.”
The Landlord has proven, on the balance of probabilities, that s 5(1)(n) applies by proving that they continued to use the premises as their principal place of residence during the flatmate’s tenure and that s66B of the RTA does not apply.
Therefore, the applicant’s claim that she was a tenant that is covered by the provisions of the Act must fail. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
The applicant has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied.

Tenancy Tribunal case 4699276 — Boarding House

At a glance

Tenancy Tribunal case 4699276 — Boarding House

At a glance

Claims & awards

Order

Reasons

Is this a boarding house tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is this a boarding house tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions