What was Tenancy Tribunal case 4849630 about?

The tribunal order states: The application is dismissed for want of jurisdiction.

How much money was awarded in case 4849630?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849630?

The dispute type was not classified.

Where can I read the official tribunal order for case 4849630?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10288655-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4849630 about?

The tribunal order states: The application is dismissed for want of jurisdiction.

How much money was awarded in case 4849630?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4849630?

The dispute type was not classified.

Where can I read the official tribunal order for case 4849630?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10288655-Tenancy_Tribunal_Order.pdf.

Newtown, Wellington Tenancy Tribunal Case 4849630 — Tenancy dispute

Order

The application is dismissed for want of jurisdiction.

Reasons

Both parties attended the hearing. Mr Maffey represented the respondent.
Ms King, as owner of the premise, makes claims against Emerge Aotearoa Housing Trust (Emerge) on the basis of the agreement they had for Emerge to rent the premise. Emerge submits that the Tribunal does not have jurisdiction over their agreement. Accordingly, this hearing was set down to establish jurisdiction.
The Residential Tenancies Act 1986 (RTA) applies to all residential tenancies in New Zealand. Section 5(1)(s) of the RTA states however that the Act does not apply where the tenancy agreement— (i) is genuinely entered into to enable a tenant (the sublandlord) to sublet the premises to provide accommodation for— . (A) other people for commercial gain; or (B) the sublandlord’s employees; or (C) persons on low incomes; or (D) persons with special housing needs; or (E) persons whose disabilities mean that they need support or supervision in their housing; and (ii) is not entered into to provide accommodation for the sublandlord or to evade this Act or any of its provisions; and (iii) expressly provides that the sublandlord will not personally occupy the premises:
“Social housing” is defined in section 5(2) as housing for persons on low incomes, or persons with special needs, or persons whose disabilities mean that they need support or supervisions in their housing. Therefore, where a tenancy agreement is entered into for a tenant to sublet the premises for social housing, and the other requirements in section 5(1)(s)(ii) and (iii) are met, the tenancy will be excluded from the provisions of the RTA and the Tribunal will not have jurisdiction to hear the dispute.
The parties’ agreement, although it is named Residential Tenancies Agreement, states that the purpose of their arrangement is for Emerge to provide social housing. Indeed, the specific use is explicitly stated at clause 3: The property is rented to the tenant to enable sub-tenanting for purposes of social or transitional housing, long or short term.
There is no evidence that Emerge used this agreement to provide for their own accommodation, or to evade the obligations of the RTA. Both parties agreed that over the relevant term Emerge used the property to provide social housing. Emerge are a well-established social housing provider in New Zealand.
There is also nothing before the Tenancy Tribunal to indicate that the parties have contracted back into the RTA pursuant to section 8. In order for parties to excluded tenancies to agree that the provisions of the RTA shall apply in respect of the tenancy (which is otherwise excluded such as here), they must do so knowingly, in appreciation that their tenancy is otherwise excluded but nevertheless agree in writing that all or some of the other RTA provisions shall apply. 1
The situation is in fact to the contrary because the parties have confirmed their understanding that the RTA is not to apply in clause 5 of their agreement which says: It is acknowledged by the landlord and the tenant that by virtue of Section 5(1)(s) of the Act, the Residential Tenancies Act 1986 and its amendments do not apply to this agreement. 1 see for example Sunrise Property Management and Services Limited v Kāhui Tū Kaha Limited [2022] NZTT Waitakere 4312386, AI Homes Real Estate Limited as agent for Jin Wang v Kāhui Tū Kaha Limited [2021] NZTT Manukau 4322019, Petrus and Blommestijn v Visionwest Community Trust Inc [2020] NZTT Waitakere 4245116
The Tribunal in Petrus and Blommestijn v Visionwest Community Trust Inc [2020] NZTT Waitakere 4245116 helpfully discusses the purposes of s5(1)(s) of the RTA, explaining that the RTA is not really designed for the purpose of the provision of social housing. The RTA is designed to apply to residential landlords who own and/or manage the tenancy, and tenants who live in the property and are responsible for it. It will therefore apply to the tenancy agreements between Emerge and their social housing tenants but is not fit for the purpose of the agreement between Ms King and Emerge.
There are also certain terms of the parties’ agreement which exemplify that Ms King is not a residential landlord in the sense that the RTA regards that term, such as: a. Emerge will “make good” any intentional damage of the sub-tenants’. 2 b. Emerge will “cover decontamination and clean-up costs”. 3 c. Emerge will regularly test for Methamphetamine residue.
Likewise, as the agreement makes no provision for Emerge directors or employees to reside in the property, they are not ‘tenants’ intending to occupy the residence, as defined by the RTA.
In summary: i. The parties expressly contracted that the RTA was not applicable to their agreement. ii. The purposes of their agreement are excluded by section 5(1)(s) of the RTA. iii. They did not expressly contract back into the RTA.
The parties’ agreement and relationship in this instance is therefore excluded under the RTA, and as such the claim filed by must fail for want of jurisdiction. Ms King will need to find recourse in another jurisdiction.

Reasons

Both parties attended the hearing. Mr Maffey represented the respondent.

Ms King, as owner of the premise, makes claims against Emerge Aotearoa Housing Trust (Emerge) on the basis of the agreement they had for Emerge to rent the premise. Emerge submits that the Tribunal does not have jurisdiction over their agreement. Accordingly, this hearing was set down to establish jurisdiction.

The Residential Tenancies Act 1986 (RTA) applies to all residential tenancies in New Zealand. Section 5(1)(s) of the RTA states however that the Act does not apply where the tenancy agreement— (i) is genuinely entered into to enable a tenant (the sublandlord) to sublet the premises to provide accommodation for— . (A) other people for commercial gain; or (B) the sublandlord’s employees; or (C) persons on low incomes; or (D) persons with special housing needs; or (E) persons whose disabilities mean that they need support or supervision in their housing; and (ii) is not entered into to provide accommodation for the sublandlord or to evade this Act or any of its provisions; and (iii) expressly provides that the sublandlord will not personally occupy the premises:

“Social housing” is defined in section 5(2) as housing for persons on low incomes, or persons with special needs, or persons whose disabilities mean that they need support or supervisions in their housing. Therefore, where a tenancy agreement is entered into for a tenant to sublet the premises for social housing, and the other requirements in section 5(1)(s)(ii) and (iii) are met, the tenancy will be excluded from the provisions of the RTA and the Tribunal will not have jurisdiction to hear the dispute.

The parties’ agreement, although it is named Residential Tenancies Agreement, states that the purpose of their arrangement is for Emerge to provide social housing. Indeed, the specific use is explicitly stated at clause 3: The property is rented to the tenant to enable sub-tenanting for purposes of social or transitional housing, long or short term.

There is no evidence that Emerge used this agreement to provide for their own accommodation, or to evade the obligations of the RTA. Both parties agreed that over the relevant term Emerge used the property to provide social housing. Emerge are a well-established social housing provider in New Zealand.

There is also nothing before the Tenancy Tribunal to indicate that the parties have contracted back into the RTA pursuant to section 8. In order for parties to excluded tenancies to agree that the provisions of the RTA shall apply in respect of the tenancy (which is otherwise excluded such as here), they must do so knowingly, in appreciation that their tenancy is otherwise excluded but nevertheless agree in writing that all or some of the other RTA provisions shall apply. 1

The situation is in fact to the contrary because the parties have confirmed their understanding that the RTA is not to apply in clause 5 of their agreement which says: It is acknowledged by the landlord and the tenant that by virtue of Section 5(1)(s) of the Act, the Residential Tenancies Act 1986 and its amendments do not apply to this agreement. 1 see for example Sunrise Property Management and Services Limited v Kāhui Tū Kaha Limited [2022] NZTT Waitakere 4312386, AI Homes Real Estate Limited as agent for Jin Wang v Kāhui Tū Kaha Limited [2021] NZTT Manukau 4322019, Petrus and Blommestijn v Visionwest Community Trust Inc [2020] NZTT Waitakere 4245116

The Tribunal in Petrus and Blommestijn v Visionwest Community Trust Inc [2020] NZTT Waitakere 4245116 helpfully discusses the purposes of s5(1)(s) of the RTA, explaining that the RTA is not really designed for the purpose of the provision of social housing. The RTA is designed to apply to residential landlords who own and/or manage the tenancy, and tenants who live in the property and are responsible for it. It will therefore apply to the tenancy agreements between Emerge and their social housing tenants but is not fit for the purpose of the agreement between Ms King and Emerge.

There are also certain terms of the parties’ agreement which exemplify that Ms King is not a residential landlord in the sense that the RTA regards that term, such as: a. Emerge will “make good” any intentional damage of the sub-tenants’. 2 b. Emerge will “cover decontamination and clean-up costs”. 3 c. Emerge will regularly test for Methamphetamine residue.

Likewise, as the agreement makes no provision for Emerge directors or employees to reside in the property, they are not ‘tenants’ intending to occupy the residence, as defined by the RTA.

In summary: i. The parties expressly contracted that the RTA was not applicable to their agreement. ii. The purposes of their agreement are excluded by section 5(1)(s) of the RTA. iii. They did not expressly contract back into the RTA.

The parties’ agreement and relationship in this instance is therefore excluded under the RTA, and as such the claim filed by must fail for want of jurisdiction. Ms King will need to find recourse in another jurisdiction.

Tenancy Tribunal case 4849630 — Tenancy dispute in Newtown, Wellington

At a glance

Claims & awards

Tenancy Tribunal case 4849630 — Tenancy dispute in Newtown, Wellington

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions