What was Tenancy Tribunal case 4852382 about?

The tribunal order states: The Applicant’s application is struck out for want of jurisdiction.

How much money was awarded in case 4852382?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4852382?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4852382?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10369619-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4852382 about?

The tribunal order states: The Applicant’s application is struck out for want of jurisdiction.

How much money was awarded in case 4852382?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4852382?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4852382?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10369619-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4852382 — Boarding House

Order

The Applicant’s application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The landlord was uncertain whether the Residential Tenancies Act 1986 (RTA) applies to her situation, as the company that owned the house prior to her purchase of it entered into a tenancy agreement with the tenant so that both parties could avail themselves of the provisions in the RTA.
At the hearing I determined the issue of jurisdiction first, before hearing the landlord’s substantive claim.
For the reasons outlined below, I am satisfied that s8 does not apply and that s 5(1)(n) applies. Consequently, there is no residential tenancy to which the Act applies. Background
The tenancy commenced on 1 February 2015.
The landlord confirmed that at the time the tenancy commenced, the property was owned by Dartmoor Properties Ltd (“DPL”).
The Companies Office Register shows: a. The landlord was one of three directors of DPL and she had a 50 percent shareholding in DPL; and b. DPL was removed from the register on 21 February 2017.
When DPL entered into a tenancy agreement with the tenant, the current landlord (one of the owners of the property) resided at the premises. The tenant rented a room and used the property’s shared facilities. At all times during his tenancy with DPL, he lived in the house with the current landlord and two or three other persons.
The tenancy agreement provided in evidence is one page and does not state the parties intend to contract out of the RTA and/or what sections of the RTA the parties agree will apply to the relationship.
The current landlord confirmed when DPL was removed from the Companies Office Register in 2017, she purchased the property from DPL and she retained the tenants at that time. The other DPL tenants have turned over and the tenant is the only DPL tenant that remains in the tenancy.
There were never 6 or more tenants living in the property at any one time during the tenant’s tenancy.
There was no new tenancy agreement signed by the tenant and the landlord when she purchased the house from DPL. The law and whether the parties have contracted into the RTA and if a section 5 exemption applies
Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 24 Beaubank Road, Kelston, Auckland (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the RTA as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.
Section 5 of the RTA contains the exceptions to the RTA. Relevantly, s 5(1)(n) of the RTA provides: “...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 Landlord confirmed that [tenancy address supressed] is her primary/principal place of residence and that she also resided there when the property was owned by Dartmoor Properties Limited (DPL) and DPL rented a room to the tenant.
The parties confirmed that they shared kitchen, dining, lounge and laundry facilities and both had access to and use of the yard. They also confirmed that their separate rooms were not locked and were accessible each by the other.
Section 2 of the RTA, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
The landlord granted the right to the tenant to occupy a room and to share the other household facilities with her and up to 2 other flatmates at any one time. She thought she may have contracted out of the RTA because DPL provided the tenant with a tenancy agreement, which the tenant signed.
Section 8 of the RTA states: “(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”.
DPL entered into a tenancy agreement with the tenant. There was no evidence provided that the new landlord entered into a new tenancy agreement with the tenant after DPL sold the property to her.
For the parties to have contracted into the RTA there would need to be a signed agreement that specifically details which parts of the RTA will apply to the tenancy of all the persons renting rooms from the landlord.
If everyone flatting with the landlord wants to contract into the RTA they will need to decide whether the whole RTA or just certain sections will apply to their living situation. The agreement must be in writing and clearly describe how everyone is to ‘contract in’ (e.g, what sections apply). The written agreement should be signed and dated by everyone involved, and each person should keep a copy.
In this case, the parties have no written agreement, and the landlord cannot rely on the agreement the tenant entered into with DPL. The legal ownership of the property changed, and new written tenancy agreements or flat sharing agreements should have been entered into between each tenant/flat mate and their new landlord.
In the absence of any evidence of the parties to this proceeding having contracted into the RTA, there is an unwritten flat sharing relationship between the parties that is not covered by the RTA. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
The applicant has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied.

Order

The Applicant’s application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The landlord was uncertain whether the Residential Tenancies Act 1986 (RTA) applies to her situation, as the company that owned the house prior to her purchase of it entered into a tenancy agreement with the tenant so that both parties could avail themselves of the provisions in the RTA.
At the hearing I determined the issue of jurisdiction first, before hearing the landlord’s substantive claim.
For the reasons outlined below, I am satisfied that s8 does not apply and that s 5(1)(n) applies. Consequently, there is no residential tenancy to which the Act applies. Background
The tenancy commenced on 1 February 2015.
The landlord confirmed that at the time the tenancy commenced, the property was owned by Dartmoor Properties Ltd (“DPL”).
The Companies Office Register shows: a. The landlord was one of three directors of DPL and she had a 50 percent shareholding in DPL; and b. DPL was removed from the register on 21 February 2017.
When DPL entered into a tenancy agreement with the tenant, the current landlord (one of the owners of the property) resided at the premises. The tenant rented a room and used the property’s shared facilities. At all times during his tenancy with DPL, he lived in the house with the current landlord and two or three other persons.
The tenancy agreement provided in evidence is one page and does not state the parties intend to contract out of the RTA and/or what sections of the RTA the parties agree will apply to the relationship.
The current landlord confirmed when DPL was removed from the Companies Office Register in 2017, she purchased the property from DPL and she retained the tenants at that time. The other DPL tenants have turned over and the tenant is the only DPL tenant that remains in the tenancy.
There were never 6 or more tenants living in the property at any one time during the tenant’s tenancy.
There was no new tenancy agreement signed by the tenant and the landlord when she purchased the house from DPL. The law and whether the parties have contracted into the RTA and if a section 5 exemption applies
Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 24 Beaubank Road, Kelston, Auckland (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the RTA as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.
Section 5 of the RTA contains the exceptions to the RTA. Relevantly, s 5(1)(n) of the RTA provides: “...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 Landlord confirmed that [tenancy address supressed] is her primary/principal place of residence and that she also resided there when the property was owned by Dartmoor Properties Limited (DPL) and DPL rented a room to the tenant.
The parties confirmed that they shared kitchen, dining, lounge and laundry facilities and both had access to and use of the yard. They also confirmed that their separate rooms were not locked and were accessible each by the other.
Section 2 of the RTA, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
The landlord granted the right to the tenant to occupy a room and to share the other household facilities with her and up to 2 other flatmates at any one time. She thought she may have contracted out of the RTA because DPL provided the tenant with a tenancy agreement, which the tenant signed.
Section 8 of the RTA states: “(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”.
DPL entered into a tenancy agreement with the tenant. There was no evidence provided that the new landlord entered into a new tenancy agreement with the tenant after DPL sold the property to her.
For the parties to have contracted into the RTA there would need to be a signed agreement that specifically details which parts of the RTA will apply to the tenancy of all the persons renting rooms from the landlord.
If everyone flatting with the landlord wants to contract into the RTA they will need to decide whether the whole RTA or just certain sections will apply to their living situation. The agreement must be in writing and clearly describe how everyone is to ‘contract in’ (e.g, what sections apply). The written agreement should be signed and dated by everyone involved, and each person should keep a copy.
In this case, the parties have no written agreement, and the landlord cannot rely on the agreement the tenant entered into with DPL. The legal ownership of the property changed, and new written tenancy agreements or flat sharing agreements should have been entered into between each tenant/flat mate and their new landlord.
In the absence of any evidence of the parties to this proceeding having contracted into the RTA, there is an unwritten flat sharing relationship between the parties that is not covered by the RTA. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
The applicant has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied.

Tenancy Tribunal case 4852382 — Boarding House

At a glance

Tenancy Tribunal case 4852382 — Boarding House

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