What was Tenancy Tribunal case 4710292 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4710292?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4710292?

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

Where can I read the official tribunal order for case 4710292?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9838981-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4710292 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4710292?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4710292?

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

Where can I read the official tribunal order for case 4710292?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9838981-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4710292 — Exemplary damages

Order

The application is dismissed.

Reasons

Both parties attended this remote teleconference hearing on 15 January 2024.
The tenant has filed an application seeking the return of his bond and exemplary damages for the landlord’s failure to lodge the bond with the Bond Centre. .
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 Residential Tenancies Act 1986 (“RTA”) by section 5(1)(n) RTA (the landlord’s position).
For the reasons outlined below, I am satisfied that s.5(1)(n) RTA applies. Accordingly, this is not a residential tenancy to which the Act applies.
I use the terms “landlord” and “tenant” in this decision for ease only. Background
The background to the arrangement is largely agreed by the parties.
The landlord entered into a tenancy agreement on or about 3 September 2022 with the owner of the premises. The landlord is to sole tenant party under that tenancy agreement.
The premises are a single story dwelling with a kitchen, bathroom, living areas, and four bedrooms
There is one main entrance to the house.
The tenant moved into the property on 14 September 2022. The landlord and tenant were previously known to each other.
The tenant’s share of the rent was $290.00 per week. This did not include utility charges which were paid separately, but equally by the residents.
The parties agreed that the residents of the premises each had exclusive use of their respective bedrooms, but that all other areas of the house including the kitchen, bathroom, laundry, dining room and lounge were communal areas which all of the residents shared.
The landlord’s evidence was that she rents the premises from the owner. No evidence was provided by the tenant to the contrary.
Finally, there is no written agreement between the parties.
The arrangement the tenant ended in August 2023. There is conflicting evidence as to how this occurred.
There was a disagreement about the return of the bond, and the applications to the Tribunal followed. The Law
Section 4 (“RTA”) provides that the Act applies to every tenancy for residential purposes except as specifically provided.
The exceptions to the Act are contained in Section 5 RTA. Relevantly, s. 5(1)(n) RTA 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, the RTA will not apply.
“Residential premises” is defined in section 2(1) RTA 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 RTA 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 RTA 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) RTA applies.
For the sake of fullness, I record that the exception in s.5(1)(s) RTA is not applicable as there is no express provision that the landlord will not personally occupy the premises 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 RTA should be interpreted strictly and not liberally. Separate household units
In this case, all facilities withing the premises were shared by the occupants with the exception of their respective bedrooms and the carpark. The tenant’s bedroom 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 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 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 s.5(n) RTA 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 RTA 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 RTA 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 RTA 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. The tenant had exclusive use of their own bedroom with all other areas being shared communally.
I consider that the living arrangement is consistent with a sharing living, or flatmate situation.
On balance, I consider the relevant premises is the house as a whole. I do not consider the tenant’s bedroom is a separate premises within a premises as discussed in Harding, rather this is a shared living relationship. The landlord at all times relevant to this inquiry occupied the premises as their primary place of residence and I conclude that section 5(1)(n) RTA applies in this case.
The factors in favour of this are the single entrance, shared kitchen, living and laundry facilities and shared utilities.
Accordingly, section 5(1)(n) RTA 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 tenant’s name and identifying details.
The landlord has been wholly successful in this matter and suppression of the landlord name and details is ordered.

Tenancy Tribunal case 4710292 — Exemplary damages

At a glance

Claims & awards

Tenancy Tribunal case 4710292 — Exemplary damages

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