What was Tenancy Tribunal case 4799960 about?

The tribunal order states: The Tribunal declines jurisdiction to consider the dispute that has arisen.

How much money was awarded in case 4799960?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4799960?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4799960?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12334690-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4799960 about?

The tribunal order states: The Tribunal declines jurisdiction to consider the dispute that has arisen.

How much money was awarded in case 4799960?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4799960?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4799960?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12334690-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4799960 — Exemplary damages

Order

The Tribunal declines jurisdiction to consider the dispute that has arisen.
The applicant’s tenancy is excluded from the RTA by virtue of s 5(1) (n) of the RTA.

Reasons

Both parties attended the hearing. The applicant [Mr M] with his representative [Mr B].
Mr M and the respondent [Ms M] are siblings.
Mr M applied to the Tribunal on 6 February 2024 for work orders/compensation and a declaration from the Tribunal that the premises he was renting from Ms M (“the unit”) were residential premises and the provisions of the RTA applied to their rental agreement, which could not therefore be terminated with three weeks’ notice as Ms M was purporting to do.
Before the Tribunal could issue a decision determining the jurisdiction issue Ms M applied to the Māori Land Court for an occupation order.
On 8 April 2024, the Māori Land Court granted a permanent injunction under s 19(1)(a) of Te Ture Whenua Māori Act 1993 in favour of Ms M.
The injunction required Mr M (and his agents and invitees) to remove themselves from the area over which Ms M holds an occupation order, i.e to remove themselves from the unit/land.
Mr M and his family vacated the unit on 19 April 2024. Ms M’s right to occupy the homestead and unit arises from a Māori Land Court occupation order.
Ms M was granted an occupation order on 6 July 2023, providing her with an exclusive right of occupation over part of the Owhata No.1J No.2B Block.2
This was in effect a transfer of an original occupation order granted to Ms M’s parents who had converted a garage adjacent to the homestead into a small unit suitable for occupation.
In June 2019, the Court made an order determining that Ms M was the owner of the dwelling (homestead) situated on Owhata No.1J No.2B block.4 The order was silent as to the former garage converted to a unit or granny flat, but the Māori Land Court said that “it is safe to assume that it is located in proximity to the homestead and clearly within the area of the original 2006 occupation order and within the area granted to Ms M”.
While it is noted that the parties continue to dispute the precise boundaries of land defined in the Māori Land Court issued occupation order, for current purposes the Court’s assumption that Ms M is entitled to occupy both the homestead and unit is assumed. How Mr M and his family came to live in the unit
In the latter part of 2023, Mr M asked his sister if he could occupy the garage unit whilst his house was being built on Māori land nearby.
Ms agreed to this, subject to an existing occupier (referred to as Mr C in this decision) vacating.
The previous occupant (Mr C) and Ms M had a written tenancy agreement. He lived in the unit on his own and his rent was initially $300 per week but then increased to $350 per week in June 2023. His rent included power (which is not separately metered to the unit) but not internet. Mr C had paid a bond of $300 that was lodged with the Bond Centre. Ms M said she did not give Mr C a key to her home including her laundry which is situated inside her home. Mr C would text her if he wanted access to the laundry and she would open it for him by agreement.
In December 2023, Ms M confirmed that Mr C was vacating, and the unit was available. In various emails it was agreed that Mr M would pay rental of $300 per week.
Prior to moving in with his wife and daughter, Mr M had moved building materials and household goods onto the area (the garage and outside area) occupied by Ms M.
Mr M said he envisaged they would have a written tenancy agreement, but this was never drafted.
Ms M said had she been asked to prepare an agreement she would not have had a written tenancy agreement as in her mind Mr M and his family were whanau coming to live with her, until their whare was built next door.
Unfortunately, the relationship between the siblings soured. Notice requiring Mr M and his family to leave
On 5 February 2024, Ms M gave Mr M 3 weeks’ notice to vacate the unit.
The following day, Mr M applied to the Tenancy Tribunal, seeking a finding that he had a residential tenancy, and work orders as work was required at the unit for it to be safe and compliant.
On 14 March 2024, Ms M issued a Trespass Notice, requiring Mr M and his family to vacate the property.
On the same day, Mr M’s application to the Tenancy Tribunal was heard. It was adjourned until 1 May 2024, to enable the parties time to consider additional material that had been filed the morning of the hearing.
Ultimately Mr M and his family vacated the unit on 19 April 2024.
Despite vacating Mr M considers that the parties had a residential tenancy to which the provisions of the RTA apply. He requests the right to pursue claims for compensation and exemplary damages in the Tribunal.
Ms M submits that the Tenancy Tribunal has no jurisdiction to consider the issues that have arisen as the rental agreement is precluded by s 5(1)(n) of the RTA.
The jurisdiction issue was noted in the first Tribunal order issued on 14 March 2024, “the first issue the Tribunal is required to consider is whether the Tribunal has jurisdiction to consider the issues raised in respect to Mr M’s occupation of the converted garage at Owhata Road”.
The jurisdiction issue arises by virtue of s 5(n) of the RTA which excludes jurisdiction if the premises (the converted garage/unit) Mr M occupied from January to April 2024, continued to be used by Ms M, principally as her place of residence. Ms M’s submissions
Ms M submits that the sibling relationship between her and the respondent is a decisive factor in this case. She says that the decision not to have a written tenancy agreement was deliberate on her part. She did not envisage a formal tenancy but a less formal whanau agreement where her brother and his family lived with her for a few months until his whare was built on adjoining whanau land.
The applicant and the respondent are ‘whanaunga’ and the occupancy arrangements in this case reflect the usual elements of ‘whanaungatanga’, including ‘manaakitanga’ (care) and ‘tohatohatanga’ (sharing).
The occupancy arrangements she made with Mr M and his family are very different to the ‘arm’s length’ arrangements she made with the previous tenant Mr C. Mr C paid considerably higher rent. Mr C arranged his own wi fi so his rent did not include internet. She did not give him a key to her house. He did not interact with her or her whanau.
By contrast Mr M and his whanau shared the outside areas with the respondent and her whanau, and he and his whanau also had access to and used her house (including the laundry).
Mr M was given a ‘house key’ to her front door. This gave him and his whanau access to her house even when she was not home, and her house was locked.
Mr M used the garage and outside area to store goods. He and his family planted plants on both sides of the driveway.
He and his whanau and visitors had unrestricted access to all of the outdoor areas of the premises, including the driveway, the lawns and gardens.
There was no exclusive use of any part of the outdoor areas by either party.
Mr M’s dog was not tied up and he roamed around the outside areas of the premises, and he also wandered into her house from time to time.
Mr M used several bottles of Barker’s Fruit Syrup (a lemon honey & ginger concentrate) which he was allowed to take from her kitchen during his occupancy of the detached unit.
When one of his children visited (with her children) she gave them a bed and other things from her house.
Mr M and his whanau were allowed to use the main clothesline on the back lawn, and they used it most of the time. The only time they used the small clothesline under the verandah of the detached unit was when it rained.
Mr M and his whanau mingled with her whanau.
Mr M maintained the outside areas around both the house and the detached unit.
Mr M used her weed killer and weed spraying equipment to control the weeds around the unit.
Between October and December 2023, Mr M brought 8 or 9 loads of household items and other things from New Plymouth, and these items and other things were either put in the garage or elsewhere around the outside areas of the respondents premises.
Mr M only started paying the weekly rental of $300 on 23 January 2024, which was three weeks after his occupancy of the detached unit started on the 1st of January 2024.
Mr M was not asked to pay a bond.
The exact terms of their agreement were never specified as it was not considered necessary to do that. The $300 was for power and rates as much as rent.
The Māori land court decision - 2025 Māori Appellate Court MB 151 confirmed that the Tenancy Tribunal would not have jurisdiction when it said; The jurisdiction of the Tenancy Tribunal is set out at ss 77-85 of the Residential Tenancies Act 1986 (the RTA). In essence, the Tenancy Tribunal has the exclusive jurisdiction to determine whether or not a tenancy exists, whereas the Māori Land Court has jurisdiction under s 18 of Te Ture Whenua Māori Act 1993 to hear and determine any claim as to ownership or possession of Māori freehold land. While there have been decisions of the Māori Land Court that comment on whether a tenancy exists, those cases did not go so far as to consider the effect of a tenancy, for instance whether it gave rise to rights and obligations under the RTA. In addition, it is clear that there have also been cases where the Tenancy Tribunal has considered claims involving proceedings before the Māori Land Court. In principle there is no barrier to a residential tenancy existing on Māori freehold land, and the Tenancy Tribunal determining whether a residential tenancy exists. This is however subject to the exclusion of tenancies between whānau members. Can a residential tenancy exist between whānau members? Section 5(1)(n) of the RTA provides that RTA does not apply where the premises continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner or by any member of their family. A family member is defined to include any person who is a member of the landlord or owner’s whānau or other culturally recognised group. The issue was mentioned in Wirihana-Tawake v Kauika-Stevens, where the Court noted that the Tenancy Tribunal declined to exercise its jurisdiction pursuant to s 5(1)(n) of the RTA. The sibling relationship that exists between Julena and John would, in our view, mean that the Tenancy Tribunal would ordinarily lack jurisdiction in a case such as this.
The Tribunal does not have jurisdiction to consider the issues that have arisen. Mr M submits that:
The tenancy is not excluded by virtue of s 5(1)(n).
He was renting only the unit which is a separate space from the homestead that Ms M occupied.
The laundry in Ms M’s house that he had access to, did not form part of the premises. It was a facility provided by Ms M for his use during the tenancy.
The Māori Land Court’s view that the tenancy was excluded focused solely on the sibling or family relationship part of the exclusion.
This is accepted, however there is nothing to suggest the Court turned its mind to the second limb of the test which is the concurrent occupancy requirement.
Mr M was renting only the separate unit. It was quite distinct and separate from the main home that Ms M occupied. There were no communal shared living spaces.
It is accepted that the outside spaces were shared although the unit had its own designated washing line.
The rent was not overly dissimilar to the rent the previous tenant was paying. It did not show a significant financial benefit due to the sibling relationship.
Ms M contacted tenancy services for advise early on suggesting she thought she was a landlord.
The onus of establishing that the RTA does not apply rests with Ms M not Mr M.
The High Court decision of Harding v Caroto [2021] NZHC 1265 confirms that the Tribunal should take a generous approach to permitting exclusions from the protections of the RTA and that the natural and ordinary meaning of “premises” contemplates that there may be more than one premises within a larger premises. Finding
In this case Mr M’s right to occupy the unit extended to a right to use the laundry. While I accept that the laundry was a facility provided for his benefit while he was living at the unit, I also accept that the only way he could access the laundry was using a key Ms M provided to him and the key provided access to her home.
I also accept her evidence that she did not provide this house key to Mr C, as he was not whanau and she did not want him to have the same right of access to her home. That is a fundamental difference in the nature of their occupancies.
I am also satisfied that the rent/weekly payment for the occupancy was significantly discounted because Mr M was whanau. The previous tenant lived at the unit on his own. He paid $350 per week rent, including power but not internet. Mr M lived there with his wife and child. Mr M and his whanau paid $300 including power, internet and access to all outside areas and the laundry and Ms M’s home.
I also accept the different nature of Mr M’s occupancy arose because both the homestead and unit are situated on Maori freehold land and the parties are ‘whanaunga’ under section 4 of Te Ture Whenua Maori Act 1993 (TTWMA 1993).
The parties possess undivided beneficial interests (shares) in the Maori land.
Ms M’s rights and interests in the land are separate and distinct from her rights and interests in the buildings on the land.
Ms M has the exclusive use and occupation of the land comprising the ‘premises’ under an Occupation Order of the Maori Land Court, made under section 328 TTWMA 1993. She also has an Order Determining Ownership of the buildings under section 18(1)(a) TTWMA 1993 which also comprise the ‘premises’.
In his application to the Māori Land Court Mr M has disputed the area and boundaries of the land under the occupation order and has also claimed that the detached unit does not sit on the land under the occupation order.
The Māori Appellate Court has directed that there will be a partial re-hearing to determine the correct area and boundaries of the occupation order, which will also determine his claim that the detached unit is not included the area of the occupation order.
Ultimately, I agree that the true nature of Mr M’s occupancy of the unit is not typical of either a residential tenancy or a flat sharing or boarding arrangement. The occupancy and indeed the disputes that have arisen, arose directly from the shared ownership of the land and the whanau relationship.
The ‘pu take’ (origin) of the occupancy in this case is ‘whanaungatanga’. It is the tikanga and kawa of whanaungatanga that really underpin and govern the rights expectations and obligations of the parties, in this case ‘whanaunga’, rather than the arrangements themselves.
In the absence of a written agreement confirming that the parties agreed to be bound by any or all of the requirements of the RTA, I accept that Ms M never intended to be so bound and that this is an excluded tenancy.
The sibling/whanau relationship between the parties, the lack of a written tenancy agreement defining the parties’ intention to be bound by the provisions of the RTA, the fact the housing is on Māori land and the communal living, and shared spaces mean that I find the provisions of s 5(1)(n) apply to exclude the Tribunal from having jurisdiction.
I note finally that this finding is also in keeping with the Māori Land Appellate Court’s preliminary finding about jurisdiction.
The parties’ names and the tenancy address are not to be published. There is little public interest in publishing either name given the dispute is essentially a whanau matter.

Tenancy Tribunal case 4799960 — Exemplary damages

At a glance

Tenancy Tribunal case 4799960 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions