What was Tenancy Tribunal case 4801177 about?

The tribunal order states: The tenancy is a residential tenancy; accordingly, the Tribunal has jurisdiction to

How much money was awarded in case 4801177?

The reconciled net award was $1,720.00.

What type of tenancy dispute was case 4801177?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4801177?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10326325-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4801177 about?

The tribunal order states: The tenancy is a residential tenancy; accordingly, the Tribunal has jurisdiction to

How much money was awarded in case 4801177?

The reconciled net award was $1,720.00.

What type of tenancy dispute was case 4801177?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4801177?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10326325-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4801177 — Boarding House

Order

The tenancy is a residential tenancy; accordingly, the Tribunal has jurisdiction to hear the substantive applications.
[The landlord/s] must pay [The tenant/s] $1,720.00 immediately, being the disputed bond. That payment will finalise all matters between the parties.

Reasons

Both parties attended the hearing.
The parties seek a determination from the Tribunal as to whether this tenancy is a residential tenancy (the tenant’s position) or a boarding arrangement, excluded from the Act by section 5(1)(n) (the landlord’s position).
For the reasons outlined below, I am not satisfied that s5(1)(n) applies. Accordingly, this is a residential tenancy to which the Act applies. Background
The background to the arrangement is largely agreed.
The tenancy commenced in July 2023 and ended on 31 January 2024.
The parties signed a “Flat Agreement” setting out the details of the arrangement, including the payment of a bond/deposit, allowing for inspections, and setting out the rent payments and other “house rules”.
The premises is a 5-bedroom house, spread over two storeys. Upstairs has 3 bedrooms, a bathroom, kitchen and living areas. Downstairs has two bedrooms, a bathroom, living area, and kitchenette. One of the bedrooms is used by the landlord, so the downstairs flat (“the flat”) consists of one bedroom, the bathroom, living area and kitchenette.
The landlord lived upstairs and the tenants in the flat
The upstairs and downstairs portions are separated by a locked door. The downstairs bedroom and internal stairs are on the landlord’s side of that door.
There is a separate entrance to the flat. The tenants do not have keys to the upstairs part of the house, and vice versa.
Utilities, rubbish bins and the mailbox are shared.
The property was advertised as a “flatmate wanted” situation.
Following the termination of the tenancy, most of the bond was refunded. However, the tenants did not consider that fair 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.

Were the premises occupied as a separate household unit?

The tenant had very little interaction with the landlord. As stated, there were shared utilities, but other than that the tenant and landlord lived independently.
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 factual 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.
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.
I do not consider that the label put on the agreement is determinative of the nature of the relationship, although it is relevant. It is one of the factors I can take into account when determining the true nature of the relationship. It was signed by the parties, and clearly forms part of the factual matrix for this matter.
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.
If the house as a whole was the relevant “premises” then I would easily conclude that section 5(1)(n) applied in this case.
However, I find that is not the case, rather I consider that the flat is a separate premise to the rest of the house. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”
The factors in favour of this are the separate entrance, facilities and living areas. There was no communal living, or shared spaces. I accept the evidence that the tenants were not entitled to access the upstairs part of the house and that the tenants had exclusive use of the flat.
While this was physically one building, there were two separate and distinct household units within that building.
Accordingly, the relevant “premises” for the purposes of section 5(1)(n) is the studio only.
The question, then, is whether the flat “continue[d] 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.”
It is clear that the flat was not used principally as a place of residence for the landlord or a member of her family.
Bearing in mind the above, my finding in this proceeding is that the tenants occupied the flat as “a self-contained separate household unit”.
Accordingly, section 5(1)(n) does not apply. The tenancy is a residential tenancy, subject to the provisions of the Act and the Jurisdiction of the Tribunal. Substantive claims
Following my determination of Jurisdiction, the matter was to be adjourned for consideration of s78A, apportionment of outgoings and for any landlord cross applications, or amended tenant claims.
At that point, the parties agreed that all matters could be resolved by the payment of the outstanding portion of the bond.
That order is made by consent.

Tenancy Tribunal case 4801177 — Boarding House

At a glance

Tenancy Tribunal case 4801177 — Boarding House

At a glance

Award balance

Claims & awards

Order

Reasons

Were the premises occupied as a separate household unit?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Were the premises occupied as a separate household unit?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions