What was Tenancy Tribunal case 4715369 about?

The tribunal order states: The Tenancy Tribunal has jurisdiction to hear the landlord’s application.

How much money was awarded in case 4715369?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4715369?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4715369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9649382-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4715369 about?

The tribunal order states: The Tenancy Tribunal has jurisdiction to hear the landlord’s application.

How much money was awarded in case 4715369?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4715369?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4715369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9649382-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4715369 — State of repair

Order

The Tenancy Tribunal has jurisdiction to hear the landlord’s application.
A further three hours should be allowed for the hearing of the landlord’s application, scheduled before me at this court on the next available date.

Reasons

Both parties attended the hearing.
The tenant had a representative speak for him.
The landlord had a professional property manager represent them.
The parties, although represented by agents, are referred to as the tenant and the landlord throughout this order.
The purpose of this hearing was to determine whether the Tenancy Tribunal has jurisdiction to hear the landlord’s application for a possession and termination order.
Questions of jurisdiction are fundamental and must be decided before the Tribunal can proceed to determine an application. Put simply: if there is no jurisdiction in this Tribunal, then that is the end of the hearing and the landlord’s application.
Where a party claims that the Tribunal does not have jurisdiction, the onus or “job” of proving that it does not have jurisdiction falls on that party. In this case the onus falls upon the tenant. The tenant must prove that the Tribunal does not have jurisdiction to the civil standard, called the “balance of probabilities”. That is the point where the Tribunal accepts that their argument is more likely than not to be correct.
In the decision that follows, I may not have referred to all the oral and other evidence presented, but the parties should know it has been considered where appropriate.

A residential tenancy?

Section 4 RTA provides that the Residential Tenancies Act 1986 (“RTA”) will apply to every tenancy for residential premises.
“Tenancy” in relation to any residential premises is defined in section 2 RTA as “the right to occupy the premises (whether exclusively or otherwise) in consideration for rent”.
Section 2 RTA further provides that residential premises means “any premises used or intended for occupation by any person as place of residence”.
It is clear to the Tribunal that the premises are residential premises, as they are clearly intended to be used for occupation by a person.
It is also clear that the tenant’s right to occupy the premises was based on his payment of rent.
As a result of those findings, I find that this to be a tenancy for residential purposes. The exclusions
Section 5 RTA sets out a number of exclusions to the Tribunal’s jurisdiction. The relevant exclusions based on the facts in this matter are sections 5(1)(l) and 5(1)(d) RTA.
The tenant argued at the hearing that the arrangement between the parties was excluded by section 5(1)(l) which provides that the RTA does not apply “where the tenant occupies the premises under an occupation right agreement within the meaning of the Retirement Villages Act 2003”.
Although it was not argued before me at the hearing, I have also considered whether jurisdiction is excluded under section 5(1)(d) which provides that the RTA does not apply “where the premises constitute part of any hospital, home, or other institution for the care of sick, disabled, or aged persons”. The tenant’s argument
The tenant argued that the exclusion under section 5(1)(l) RTA applied because: • The premises is one of nine, one bedroom, self-contained units known to the public as “the pensioner flats” or the “[suppressed] retirement village/housing complex”. • The landlord looks after the grounds and provides transport for residents to appointments. • There is a large lock-up facility for the storage of recreational equipment owned by the landlord and provided for the use of residents. • The complex qualifies as a retirement village under the definition in section 6 of the Retirement Villages Act 2003 (“RVA”). • The purposes of the landlord – a charitable trust incorporated under the Charitable Trusts Act 1957 – include, among other things, “To assist indigent, aged, ill, disabled or infirm returned and service men and women and their spouses and dependents”. • The premises are not offered to younger people to rent, only “pensioners”. • The tenancy agreement filed as evidence by the landlord was not signed by the tenant and the tenant did not know what he was signing. • The premises are not advertised for rent and are instead let to people by “word of mouth” who are on a waiting list. • The rent is below market rent. • In summary: “If it looks and feels like a retirement complex/village then it is. If the cap fits, it fits.”
The landlord does not believe that either exclusion applies because: • A tenancy agreement was entered into by the parties. It was signed by both parties. • A bond was paid and has been deposited with the Bond Centre. • The premises are known in the area as the “[suppressed] flats” not retirement complex/village. • The trustees will rent to younger people and the Trust Deed allows them to do so. The trustees have preferred to benefit the elderly to date. • A landlord is under no obligation to advertise a property for rent. • The landlord is a charitable trust and fulfils its purpose by charging lower than market rent. • The professional property manager collects all rent and pays all outgoings as it would for any other residential tenancy it manages. • In summary, this is an ordinary residential tenancy of one of a block of nine flats. Consideration
Section 6(1) RVA provides: “retirement village means the part of any property, building, or other premises that contains 2 or more residential units that provide, or are intended to provide, residential accommodation together with services or facilities, or both, predominantly for persons in their retirement, or persons in their retirement and their spouses or partners, or both, and for which the residents pay, or agree to pay, a capital sum as consideration...”
The tenant noted the provision of section 6(5) RVA: “Whether or not a property or building is, or any other premises are, a retirement village must be determined according to the nature, substance, and economic effect of the operation of the property, building, or premises and other facts, and independently of its or their form or description in any document.”
The tenant argued that: • The premises contain more than two residential units that provide residential accommodation. • The storage room containing items for use by the residents is/are “facilities”. • The provision of transport was a “service”. • The tenant paid a capital sum by virtue of being a discretionary beneficiary under other charitable trusts for which the trustees are responsible by virtue of the tenant’s assertion that capital funds must come from another source to maintain the premises as the rental income is insufficient.
The landlord gave evidence that it did not need to provide capital or income to the trust from any other source and that it relied on the generous assistance of volunteers. It rejected any suggestion that trust funds were appropriated for the benefit of the tenant. I accept the landlord’s evidence. The tenant’s assertion was mere supposition.
I am not persuaded on the balance of probabilities that the premises meets the definition in section 6 RVA. The tenant is one of a class of discretionary beneficiaries under a charitable trust. It is well-established law that a discretionary beneficiary’s only interest is an expectation, only a right to be considered by the trustees. Until trustees resolve to vest trust property in a beneficiary, a potential beneficiary has no interest in the trust assets other than an expectation.
The tenant has not provided any evidence that the tenant has paid any capital sum as a consideration for his right to occupy the property.
The payment of a capital sum is important because it is the protection of such a capital sum and the rights and obligations regarding it that the RVA addresses.
I am not persuaded that the provision of a room full of outdoor furniture and games equipment constitutes facilities sufficient to constitute these premises as a retirement village. Nor am I persuaded that the provision of transport on a voluntary, charitable basis constitutes a service. No consideration is paid for these. They are part of the trustees meeting the charitable purposes of the trust.
The public reputation or what the complex is called is not relevant to determining the nature of the relationship between the parties.
The tenant’s argument that his arrangement with the landlord is excluded by section 5(1)(l) RTA is dismissed. Section 5(1)(d) RTA
As noted, among the purposes of the trust is to assist aged, returned service men and women and their spouses and dependents.
This is one of five categories listed in that one subclause of the deed of trust. It does not in any way limit the trustees to benefitting only the aged. It is not the trust’s sole or primary purpose to provide care for the aged. It is just one of a number of purposes.
The trust deed provides further very broad purposes as well, including “To be beneficial to the local community by assisting any public charity or any organisation dispensing charity or relieving or caring for the aged, ill or infirm.”
The trustees are entitled to rent out the premises to people of any age and one may hope that this will happen when there are no longer returned service men and women who need this accommodation.
I am not persuaded that the landlord provides “care” for its residents as required under section 5(1)(d) RTA. It provides accommodation. No evidence was provided to the Tribunal that the landlord provides nursing or other “in home” services for the tenants which could be described as “care”.
In Adams v Massey University Palmerston North TT 43/94, 10 October 1994 Judge Toomey stated that, in order to give effect to the Act’s true intent and meaning, the courts (and the Tribunal) are required to interpret the exemptions in section 5 RTA strictly and not liberally.
I am satisfied that the exclusion under section 5(1) (d) RTA does not apply to the relationship between the landlord and tenant. Section 8 RTA: The Tenancy Agreement
The tenant claimed that the tenancy agreement was not signed by the tenant and that due to his infirmity he did not know that he was paying a bond or entering into a tenancy.
As noted, the tenancy agreement is taken from the Tenancy Services website and includes all its usual terms, including warnings regarding it being a legally binding contract. It clearly provides for payment of rent which the tenant has dutifully paid and the payment of a bond which he also paid.
It clearly describes the parties as landlord and tenant. It is signed in the correct place by the landlord’s representative on page 5. It is signed by the tenant on the last page, being page 9, confirming the property inspection report. I am satisfied that the tenant has entered into and signed the tenancy agreement.
The parties have enjoyed the benefits and honoured the obligations of that agreement for over four years without the tenant objecting.
Section 8 RTA provides: “8 Parties to excluded tenancies may agree that Act shall apply (1) Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree. (2) Without limiting subsection (1), any such agreement may confer upon the Tribunal, in respect of the tenancy, all or any of the jurisdiction conferred on the Tribunal by this Act in respect of tenancies to which this Act applies.”
The Judge GM Harrison in Fetherston v Barfoot and Thompson Ltd [2015] NZDC 12810 stated at paragraph 18: “It is quite clear that the tenancy agreement imports all of the provisions of the Act into the tenancy. The agreement is in writing signed by the necessary parties and plainly is intended to incorporate all of the provisions of the Act. This is simply confirmed by the payment of the bond to the Bond Centre at the Department of Building and Housing. Where a bond is paid the provisions of the Act govern what happens to it. If it was not intended for the Act to apply, then no bond would have been paid. Once the parties agree that a bond should be paid then the Act will apply.”
I must therefore conclude that even if my analysis of the exclusions under section 5 RTA are incorrect, the parties have contracted back into the Tribunal’s jurisdiction by entering into the tenancy agreement, paying the bond and transferring the bond to the Bond Centre. Conclusion
I am satisfied that the RTA applies to this tenancy and that the Tribunal has jurisdiction to hear the landlord’s application.
The parties will be notified in writing by Tenancy Services of the date and time of the next hearing when the landlord’s application will be considered.

Tenancy Tribunal case 4715369 — State of repair

At a glance

Tenancy Tribunal case 4715369 — State of repair

At a glance

Claims & awards

Order

Reasons

A residential tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

A residential tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions