What was Tenancy Tribunal case 4709249 about?

The tribunal order states: This is not a residential tenancy. The Tribunal does not have jurisdiction to

How much money was awarded in case 4709249?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4709249?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4709249?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9615721-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4709249 about?

The tribunal order states: This is not a residential tenancy. The Tribunal does not have jurisdiction to

How much money was awarded in case 4709249?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4709249?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4709249?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9615721-Tenancy_Tribunal_Order.pdf.

26B Newcastle Road, Dinsdale, Hamilton 3204 Tenancy Tribunal Case 4709249 — Boarding House

Order

This is not a residential tenancy. The Tribunal does not have jurisdiction to determine the applications.

Reasons

Both parties attended the hearing, which was held via video conference.
The tenant has filed an application seeking the return of her bond, compensation, and reimbursement of the filing fee.
The landlord challenges the jurisdiction of the Tribunal.
Accordingly, first the Tribunal must determine whether this tenancy is a residential tenancy (the tenant’s position) or a flatmates arrangement, excluded from the Act by section 5(1)(n) (the landlord’s position).
For the reasons outlined below, I am satisfied that s5(1)(n) applies. Accordingly, this is not a residential tenancy to which the Act applies.
I use the terms “landlord” and “tenant” for ease only. Background
The background to the arrangement is largely agreed.
The landlord resides in the property with her husband and children. The premises is a two-story dwelling with a kitchen, bathroom, living areas, and bedrooms for the family. Downstairs is another bedroom, bathroom and shower area. There is an additional small room for storage or as a separate kitchen.
The landlord has an outside kitchen also, which she uses to cook curry, as she does not like to cook them in the main dwelling.
There is one main entrance to the house, together with a garage with internal access.
The tenant moved into the property on 15 August 2023, having answered an advertisement on Facebook.
The rent was $300.00 per week, which included power, water and internet.
The tenant’s evidence is that it was made clear that she shouldn’t use the upstairs of the house often, so she cooked upstairs, in the microwave and air fryer, but stored food and cutlery, crockery and other items downstairs. The tenant accepts that her son spent more time upstairs, and that the landlord encouraged that. However, she would watch TV in her room and there was no socialising behind her having a coffee and cigarette up stairs while her son ate breakfast.
The landlord’s evidence was that the tenant did stay in her room a lot of the time, however that was her choice, rather than something the landlord required. The landlord indicated that the tenant’s son spent time upstairs, and she would feed him when she fed her own children. The landlord’s evidence was that the kitchen was for shared use.
The parties agree there is one laundry which is shared.
The landlord’s evidence is that she rents the premises from the owner. The tenant’s position is that the landlord owns the property. I did not get corroborating evidence for either position, but not a lot hinges on this, as a person who rents a property can be a sub-landlord to people she contracts with.
Finally, there is no written agreement, but I heard evidence of the advertisement the tenant responded to, and the landlord has provided a screen shot of the advertisement for me. I understand this is the current advertisement for a replacement tenant, but the landlord’s evidence is that the working is the same. It is reproduced below.
The agreement was terminated abruptly, following a dispute between the parties and Police involvement.
There was a disagreement about the return of the bond, and 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. Caselaw
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. Separate household units
While, in a practical sense, the tenant did not have a lot to do with the landlord, there were a number of shared facilities, and there was no division between the areas occupied by the tenant and the landlord. The downstairs cannot be described as self-contained.
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 Auckland 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.
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.
In the present case, I consider the definition in Musson is helpful in defining the relationship. Although I accept there was less of a co-operative relationship than may have been contemplated in that case, given the parties purchased food separately and did not cook together.
I consider that the advertisement is consistent with a sharing living, or flatmate situation.
On balance, however, I consider relevant premises is the house as a whole. I do not consider the downstairs area is a separate premises within a premises as discussed in Harding, rather this is a shared living relationship. The landlord and her family occupy the premises as their primary place of residence and I conclude that section 5(1)(n) applies in this case.
The factors in favour of this are the single entrance, shared kitchen, living and laundry facilities, shared utilities and the lack of division between the living areas. I accept the evidence that the tenant was entitled to access the full house, even if she did not do this often.
Accordingly, section 5(1)(n) does apply. The tenancy is not a residential tenancy, and the Tribunal declines jurisdiction. Suppression
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
In the present case, the tenant was not wholly or substantially successful.
I have considered if I should grant a name suppression order for the tenant having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the tenant’s name and identifying details outweigh the interest of the open justice reporting principle.
In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the landlord and the public interest, the public interest outweighs the tenant’s interests.
Accordingly, no order is made for suppression of the tenan’ name and identifying details.

Reasons

Both parties attended the hearing, which was held via video conference.

The tenant has filed an application seeking the return of her bond, compensation, and reimbursement of the filing fee.

The landlord challenges the jurisdiction of the Tribunal.

Accordingly, first the Tribunal must determine whether this tenancy is a residential tenancy (the tenant’s position) or a flatmates arrangement, excluded from the Act by section 5(1)(n) (the landlord’s position).

For the reasons outlined below, I am satisfied that s5(1)(n) applies. Accordingly, this is not a residential tenancy to which the Act applies.

I use the terms “landlord” and “tenant” for ease only. Background

The background to the arrangement is largely agreed.

The landlord resides in the property with her husband and children. The premises is a two-story dwelling with a kitchen, bathroom, living areas, and bedrooms for the family. Downstairs is another bedroom, bathroom and shower area. There is an additional small room for storage or as a separate kitchen.

The landlord has an outside kitchen also, which she uses to cook curry, as she does not like to cook them in the main dwelling.

There is one main entrance to the house, together with a garage with internal access.

The tenant moved into the property on 15 August 2023, having answered an advertisement on Facebook.

The rent was $300.00 per week, which included power, water and internet.

The tenant’s evidence is that it was made clear that she shouldn’t use the upstairs of the house often, so she cooked upstairs, in the microwave and air fryer, but stored food and cutlery, crockery and other items downstairs. The tenant accepts that her son spent more time upstairs, and that the landlord encouraged that. However, she would watch TV in her room and there was no socialising behind her having a coffee and cigarette up stairs while her son ate breakfast.

The landlord’s evidence was that the tenant did stay in her room a lot of the time, however that was her choice, rather than something the landlord required. The landlord indicated that the tenant’s son spent time upstairs, and she would feed him when she fed her own children. The landlord’s evidence was that the kitchen was for shared use.

The parties agree there is one laundry which is shared.

The landlord’s evidence is that she rents the premises from the owner. The tenant’s position is that the landlord owns the property. I did not get corroborating evidence for either position, but not a lot hinges on this, as a person who rents a property can be a sub-landlord to people she contracts with.

Finally, there is no written agreement, but I heard evidence of the advertisement the tenant responded to, and the landlord has provided a screen shot of the advertisement for me. I understand this is the current advertisement for a replacement tenant, but the landlord’s evidence is that the working is the same. It is reproduced below.

The agreement was terminated abruptly, following a dispute between the parties and Police involvement.

There was a disagreement about the return of the bond, and 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. Caselaw

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. Separate household units

While, in a practical sense, the tenant did not have a lot to do with the landlord, there were a number of shared facilities, and there was no division between the areas occupied by the tenant and the landlord. The downstairs cannot be described as self-contained.

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 Auckland 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.

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.

In the present case, I consider the definition in Musson is helpful in defining the relationship. Although I accept there was less of a co-operative relationship than may have been contemplated in that case, given the parties purchased food separately and did not cook together.

I consider that the advertisement is consistent with a sharing living, or flatmate situation.

On balance, however, I consider relevant premises is the house as a whole. I do not consider the downstairs area is a separate premises within a premises as discussed in Harding, rather this is a shared living relationship. The landlord and her family occupy the premises as their primary place of residence and I conclude that section 5(1)(n) applies in this case.

The factors in favour of this are the single entrance, shared kitchen, living and laundry facilities, shared utilities and the lack of division between the living areas. I accept the evidence that the tenant was entitled to access the full house, even if she did not do this often.

Accordingly, section 5(1)(n) does apply. The tenancy is not a residential tenancy, and the Tribunal declines jurisdiction. Suppression

Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.

In the present case, the tenant was not wholly or substantially successful.

I have considered if I should grant a name suppression order for the tenant having regard to the interests of the parties and public interest under Section 95A(4) RTA.

I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the tenant’s name and identifying details outweigh the interest of the open justice reporting principle.

In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the landlord and the public interest, the public interest outweighs the tenant’s interests.

Accordingly, no order is made for suppression of the tenan’ name and identifying details.

Tenancy Tribunal case 4709249 — Boarding House at 26B Newcastle Road, Dinsdale, Hamilton 3204

At a glance

Claims & awards

Tenancy Tribunal case 4709249 — Boarding House at 26B Newcastle Road, Dinsdale, Hamilton 3204

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions