What was Tenancy Tribunal case 4745869 about?

The tribunal order states: The application by the tenant is dismissed.

How much money was awarded in case 4745869?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4745869?

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

Where can I read the official tribunal order for case 4745869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10178171-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4745869 about?

The tribunal order states: The application by the tenant is dismissed.

How much money was awarded in case 4745869?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4745869?

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

Where can I read the official tribunal order for case 4745869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10178171-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4745869 — Exemplary damages

Order

The application by the tenant is dismissed.

Reasons

Both parties attended the video hearing.
The tenant seeks release of her bond, exemplary damages for the landlord failing to lodge the bond with the Bond Centre, overpayment of rent and reimbursement of the filing fee.
No cross claim was filed by the landlord.
Prior to considering any issues between the parties, I must consider if the Tribunal has jurisdiction to hear the application.
Section 5(1)(n) RTA provides that the Act does not apply: “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 emphasis is mine)
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house- sharing agreements.
The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.
The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises.” c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant.
Three people lived at the premises. It was not a boarding house as defined in the RTA. One of the residents was the owner.
The tenant had exclusive use of her bedroom with all other communal facilities (lounge, kitchen, bathroom, laundry, dining room, entrance and the like) being shared. This was not the self-contained situation referred to in Harding.
I consider that s.5(1)(n) RTA applies to these circumstances and that the Tribunal does not have jurisdiction to hear the claim. The tenant may wish to refer the matter to the Disputes Tribunal.
Both parties applied for name suppression. The tenant has not been wholly or substantially successful in this matter and her application for suppression is dismissed. The landlord has been wholly successful and suppression of the landlord name and details is ordered.

Order

The application by the tenant is dismissed.

Reasons

Both parties attended the video hearing.
The tenant seeks release of her bond, exemplary damages for the landlord failing to lodge the bond with the Bond Centre, overpayment of rent and reimbursement of the filing fee.
No cross claim was filed by the landlord.
Prior to considering any issues between the parties, I must consider if the Tribunal has jurisdiction to hear the application.
Section 5(1)(n) RTA provides that the Act does not apply: “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 emphasis is mine)
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house- sharing agreements.
The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.
The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises.” c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant.
Three people lived at the premises. It was not a boarding house as defined in the RTA. One of the residents was the owner.
The tenant had exclusive use of her bedroom with all other communal facilities (lounge, kitchen, bathroom, laundry, dining room, entrance and the like) being shared. This was not the self-contained situation referred to in Harding.
I consider that s.5(1)(n) RTA applies to these circumstances and that the Tribunal does not have jurisdiction to hear the claim. The tenant may wish to refer the matter to the Disputes Tribunal.
Both parties applied for name suppression. The tenant has not been wholly or substantially successful in this matter and her application for suppression is dismissed. The landlord has been wholly successful and suppression of the landlord name and details is ordered.

Tenancy Tribunal case 4745869 — Exemplary damages

At a glance

Claims & awards

Tenancy Tribunal case 4745869 — 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