What was Tenancy Tribunal case 4867780 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4867780?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4867780?

The dispute type was not classified.

Where can I read the official tribunal order for case 4867780?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10291954-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4867780 about?

The tribunal order states: The Tribunal orders suppression of the parties’ names and identifying details.

How much money was awarded in case 4867780?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4867780?

The dispute type was not classified.

Where can I read the official tribunal order for case 4867780?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10291954-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4867780 — Tenancy dispute

Order

The Tribunal orders suppression of the parties’ names and identifying details.
The parties’ tenancy is excluded by sections 2(3) and 5(1)(a) of the Residential Tenancies Act 1986 (“RTA”) and the Tribunal does not have jurisdiction to determine the issues between the parties.

Reasons

Both parties attended the hearing by telephone.
The landlord leased to the tenant two areas of factory premises totalling some 3000m2 (“the premises’) in an area zoned light industrial: a. The first area of around 600m2 was used by the tenant for storage (‘the factory”). b. The second smaller area was in the disused office space appurtenant to the factory (‘the offices”).
The tenant gave evidence that he and the landlord had agreed that he could use the offices to store his personal goods securely and for him to live there.
The leases were not committed to writing. The landlord had purchased the buildings in 2020 to demolish them as part of an intended redevelopment of the site. The landlord gave evidence that the tenant’s right to occupy these areas was under what is known as a “statutory tenancy” under section 210 of the Property Law Act 2007 – that is it was terminable on 20 working days’ written notice. The landlord provided written evidence from another lessee confirming that he and the other lessee all understood that this was the basis on which they were renting their areas in the premises.
The landlord provided a copy of a GST invoice dated 12 February 2023. This was addressed to the tenant’s company and claimed GST on the increased rent for both the factory and the offices.
The landlord gave evidence that in December 2022, it agreed to the tenant’s request to lease the offices for the purpose of securely storing his personal possessions and that at the time of making the request, the tenant had already changed the locks to the offices and moved his personal possessions into the offices. As the offices were not being used, the landlord agreed and a rental was set.
The landlord gave evidence that the tenant also made a request at that time, just before Christmas, to use the offices temporarily as a place to sleep and the landlord consented on the basis that the use was short term until the tenant found accommodation, because the offices were not suitable for residential accommodation.
The landlord advised and provided photographic evidence that the offices had no cooking facilities, hot water, laundry, food storage, shower, bath or toilet. The landlord confirmed that during its ownership, the offices had not been used for residential accommodation.
The landlord gave evidence that it did not believe that the tenant was living there permanently and that they believed he came and went from time to time. They advised that they did not inspect the offices because they had no need, believing that the tenant was not living there and they had no ability to gain access as the tenant had changed the locks and installed security cameras.
The landlord gave evidence that such other parts of the premises as were leased out, were leased to a builder and to other parties for storage. As the property was to be demolished, the landlord did not seek tenants.
The tenant’s evidence was that: a. The landlord consented to his living in the offices permanently and that he did so. He explained that he came and went but that the offices were his home and that his children stayed with him there at times. b. At the time he moved into the offices, there was a sink, a burned-out hot water cylinder and a toilet. c. The landlord had agreed to him making any necessary alterations so that he could live in the offices comfortably and so that they were self-contained accommodation. d. He installed a shower in one of the rooms and a hot water cylinder on the mezzanine floor/roof. These alterations were done without local body consent. e. He lived in the offices “24/7” and that the landlord and the other tenants of the factory knew this.
The landlord’s claim is that the Tribunal does not have jurisdiction because of the exclusion in section 5(1)(b) RTA which provides that “This Act shall not apply where the premises are commercial premises.”
Commercial premises are defined in section 2(1) RTA simply as premises which are not residential. Residential premises are defined in the same section as “any premises used or intended for occupation by any person as a place of residence”.
In this case, it is clear that the lease of the factory and of the rest of the premises was of commercial premises, with the exception of what the landlord described as “manager’s accommodation” which was occupied by children of the landlord’s directors and, subsequently, since January this year, by the directors of the landlord and their family. There was no suggestion at the hearing by either party that any part of the factory was used by the tenant for anything but storage.
Section 2(3) RTA provides: “For the purposes of this Act, where any premises that are subject to a legal or an equitable lease are used for both commercial and residential purposes, the premises shall be deemed to be residential premises unless it is proved that the premises were let principally for purposes other than residential purposes.”
The onus of proof is on the landlord. That is, the landlord must prove on the balance of probabilities that the offices were commercial premises, or that the premises – being the whole of the property - were let principally for purposes other than residential purposes. See section 10 RTA.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. It is for the parties to provide the necessary evidence to the Tribunal. It is not the Tribunal’s responsibility to extract evidence. Discussion
Whether the premises were “principally used” for commercial or residential premises requires a consideration of the substance of the arrangement, including: the overall context of the land and buildings, the nature of the premises (for example, whether the premises contained facilities that one would associate with proper residential purposes), the nature of the commercial use, and the space occupied for commercial use.
For example, in Kahi v Lucas HC Auckland HC81/96, 23 September 1996, the landlord had a lease of commercial premises. He used the ground floor of the premises as a mechanical garage, and he sublet the top floor of the building to a tenant for residential purposes. The High Court held that, because premises could include part of any premises and the top floor was residential, the sublease came within the Act.
However, in Main v Main [2007] NZCA 306 the appellant only occupied a moderate proportion of a building for residential use compared to the total area of the premises, and therefore the tenancy fell outside the jurisdiction of the Act. Chisholm J distinguished Kahi v Lucas because in that case there was a discrete subtenancy of the entire top floor of the building for residential purposes, while in Main there was a dual use of the premises which triggered section 2(3) RTA.
In Vuletic v Littlewonz Ltd DC Auckland CIV-2009-004-625, 27 July 2009 Judge Hubble cited Main (above) in which the Court emphasised that the test of whether or not premises are residential incorporates ‘use’ as well as ‘intention’. In Vuletic, photographs produced in evidence indicated that the premises were lavishly furnished with little evidence to show commercial use. Judge Hubble held that although the leases the parties relied on were commercial in form, the premises had been used in the past for commercial use, and the premises were located predominately in a commercial zone, the evidence established that the actual ‘use’ of the whole of the building was principally for residential use.
The legal text “Residential Tenancy Law in New Zealand” by Stewart Benson at page 22 comments: “Commercial premises includes industrial premises let for storage, without proper residential facilities, such as a living area, adequate bathroom or laundry,(Rodionov v Nicolaou DC Lower Hutt TT979/00, 8 February 2001 at 4-5) and a large factory with ancillary facilities and overriding commercial purpose (Dexter v Mead DC Waitakere TT372/03, 27 March 2003 at [39]-[42]). Decision
Having considered all the evidence submitted by both parties, including photographs and a perusal of the total premises on Google Earth, the landlord has satisfied the Tribunal on the balance of probabilities that the premises were let principally for purposes other than residential purposes. The premises were let principally for commercial purposes. In the overall context of the premises, the part occupied by the tenant for residential purposes was very small.
The Tribunal bases this decision on the following matters: a. The offices were in no way suitable for residential accommodation. They lacked any of the required facilities. They were designed and built as offices, not as residential accommodation. b. Because of the state of the offices, I accept the landlord’s evidence that any agreement for the tenant to stay there was for temporary, emergency accommodation. c. The offices had no history of being used for residential accommodation. d. From their design, fitout and condition, there was no intention that they be used for residential purposes. e. There were none of the usual chattels which one would see provided in a residential tenancy. f. There is no evidence that any bond was ever paid, as would be usual in a residential tenancy. g. The basic facilities installed by the tenant were installed illegally, that is, without local body consent and not by a qualified tradesperson. h. The tenant has not persuaded the Tribunal that he had the landlord’s consent to undertake these changes. Being of such a significant nature that would change the use of the offices and required local body consent, it is significant that the landlord’s consent was not obtained in writing. i. The provision of an uncontested invoice to the tenant’s company rather than to him personally. This invoice also included a charge for GST which is not payable on the rent for residential tenancies. j. The minimal amount of rent charged of $200.00 plus GST per month. k. The written evidence of another commercial lessee that the tenant moved his possessions into the offices and changed the locks prior to obtaining the landlord’s consent and that he understood that the tenant knew he was not meant to be living there permanently. l. The Tribunal is not persuaded on the evidence before it that the tenant was living in the offices permanently with the consent of the landlord. m. The predominant use of almost all the rest of these very large premises was commercial. n. The premises are zoned light industrial.
The parties’ tenancy is excluded by sections 2(3) and 5(1)(a) of the Residential Tenancies Act 1986 (“RTA”) and the Tribunal does not have jurisdiction to determine the issues between the parties. Suppression
Section 95A RTA provides that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
This application has been dismissed for lack of jurisdiction. The naming of the parties therefore has no public interest and suppression of the parties’ details is ordered.

Reasons

Both parties attended the hearing by telephone.

The landlord leased to the tenant two areas of factory premises totalling some 3000m2 (“the premises’) in an area zoned light industrial: a. The first area of around 600m2 was used by the tenant for storage (‘the factory”). b. The second smaller area was in the disused office space appurtenant to the factory (‘the offices”).

The tenant gave evidence that he and the landlord had agreed that he could use the offices to store his personal goods securely and for him to live there.

The leases were not committed to writing. The landlord had purchased the buildings in 2020 to demolish them as part of an intended redevelopment of the site. The landlord gave evidence that the tenant’s right to occupy these areas was under what is known as a “statutory tenancy” under section 210 of the Property Law Act 2007 – that is it was terminable on 20 working days’ written notice. The landlord provided written evidence from another lessee confirming that he and the other lessee all understood that this was the basis on which they were renting their areas in the premises.

The landlord provided a copy of a GST invoice dated 12 February 2023. This was addressed to the tenant’s company and claimed GST on the increased rent for both the factory and the offices.

The landlord gave evidence that in December 2022, it agreed to the tenant’s request to lease the offices for the purpose of securely storing his personal possessions and that at the time of making the request, the tenant had already changed the locks to the offices and moved his personal possessions into the offices. As the offices were not being used, the landlord agreed and a rental was set.

The landlord gave evidence that the tenant also made a request at that time, just before Christmas, to use the offices temporarily as a place to sleep and the landlord consented on the basis that the use was short term until the tenant found accommodation, because the offices were not suitable for residential accommodation.

The landlord advised and provided photographic evidence that the offices had no cooking facilities, hot water, laundry, food storage, shower, bath or toilet. The landlord confirmed that during its ownership, the offices had not been used for residential accommodation.

The landlord gave evidence that it did not believe that the tenant was living there permanently and that they believed he came and went from time to time. They advised that they did not inspect the offices because they had no need, believing that the tenant was not living there and they had no ability to gain access as the tenant had changed the locks and installed security cameras.

The landlord gave evidence that such other parts of the premises as were leased out, were leased to a builder and to other parties for storage. As the property was to be demolished, the landlord did not seek tenants.

The tenant’s evidence was that: a. The landlord consented to his living in the offices permanently and that he did so. He explained that he came and went but that the offices were his home and that his children stayed with him there at times. b. At the time he moved into the offices, there was a sink, a burned-out hot water cylinder and a toilet. c. The landlord had agreed to him making any necessary alterations so that he could live in the offices comfortably and so that they were self-contained accommodation. d. He installed a shower in one of the rooms and a hot water cylinder on the mezzanine floor/roof. These alterations were done without local body consent. e. He lived in the offices “24/7” and that the landlord and the other tenants of the factory knew this.

The landlord’s claim is that the Tribunal does not have jurisdiction because of the exclusion in section 5(1)(b) RTA which provides that “This Act shall not apply where the premises are commercial premises.”

Commercial premises are defined in section 2(1) RTA simply as premises which are not residential. Residential premises are defined in the same section as “any premises used or intended for occupation by any person as a place of residence”.

In this case, it is clear that the lease of the factory and of the rest of the premises was of commercial premises, with the exception of what the landlord described as “manager’s accommodation” which was occupied by children of the landlord’s directors and, subsequently, since January this year, by the directors of the landlord and their family. There was no suggestion at the hearing by either party that any part of the factory was used by the tenant for anything but storage.

Section 2(3) RTA provides: “For the purposes of this Act, where any premises that are subject to a legal or an equitable lease are used for both commercial and residential purposes, the premises shall be deemed to be residential premises unless it is proved that the premises were let principally for purposes other than residential purposes.”

The onus of proof is on the landlord. That is, the landlord must prove on the balance of probabilities that the offices were commercial premises, or that the premises – being the whole of the property - were let principally for purposes other than residential purposes. See section 10 RTA.

While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. It is for the parties to provide the necessary evidence to the Tribunal. It is not the Tribunal’s responsibility to extract evidence. Discussion

Whether the premises were “principally used” for commercial or residential premises requires a consideration of the substance of the arrangement, including: the overall context of the land and buildings, the nature of the premises (for example, whether the premises contained facilities that one would associate with proper residential purposes), the nature of the commercial use, and the space occupied for commercial use.

For example, in Kahi v Lucas HC Auckland HC81/96, 23 September 1996, the landlord had a lease of commercial premises. He used the ground floor of the premises as a mechanical garage, and he sublet the top floor of the building to a tenant for residential purposes. The High Court held that, because premises could include part of any premises and the top floor was residential, the sublease came within the Act.

However, in Main v Main [2007] NZCA 306 the appellant only occupied a moderate proportion of a building for residential use compared to the total area of the premises, and therefore the tenancy fell outside the jurisdiction of the Act. Chisholm J distinguished Kahi v Lucas because in that case there was a discrete subtenancy of the entire top floor of the building for residential purposes, while in Main there was a dual use of the premises which triggered section 2(3) RTA.

In Vuletic v Littlewonz Ltd DC Auckland CIV-2009-004-625, 27 July 2009 Judge Hubble cited Main (above) in which the Court emphasised that the test of whether or not premises are residential incorporates ‘use’ as well as ‘intention’. In Vuletic, photographs produced in evidence indicated that the premises were lavishly furnished with little evidence to show commercial use. Judge Hubble held that although the leases the parties relied on were commercial in form, the premises had been used in the past for commercial use, and the premises were located predominately in a commercial zone, the evidence established that the actual ‘use’ of the whole of the building was principally for residential use.

The legal text “Residential Tenancy Law in New Zealand” by Stewart Benson at page 22 comments: “Commercial premises includes industrial premises let for storage, without proper residential facilities, such as a living area, adequate bathroom or laundry,(Rodionov v Nicolaou DC Lower Hutt TT979/00, 8 February 2001 at 4-5) and a large factory with ancillary facilities and overriding commercial purpose (Dexter v Mead DC Waitakere TT372/03, 27 March 2003 at [39]-[42]). Decision

Having considered all the evidence submitted by both parties, including photographs and a perusal of the total premises on Google Earth, the landlord has satisfied the Tribunal on the balance of probabilities that the premises were let principally for purposes other than residential purposes. The premises were let principally for commercial purposes. In the overall context of the premises, the part occupied by the tenant for residential purposes was very small.

The Tribunal bases this decision on the following matters: a. The offices were in no way suitable for residential accommodation. They lacked any of the required facilities. They were designed and built as offices, not as residential accommodation. b. Because of the state of the offices, I accept the landlord’s evidence that any agreement for the tenant to stay there was for temporary, emergency accommodation. c. The offices had no history of being used for residential accommodation. d. From their design, fitout and condition, there was no intention that they be used for residential purposes. e. There were none of the usual chattels which one would see provided in a residential tenancy. f. There is no evidence that any bond was ever paid, as would be usual in a residential tenancy. g. The basic facilities installed by the tenant were installed illegally, that is, without local body consent and not by a qualified tradesperson. h. The tenant has not persuaded the Tribunal that he had the landlord’s consent to undertake these changes. Being of such a significant nature that would change the use of the offices and required local body consent, it is significant that the landlord’s consent was not obtained in writing. i. The provision of an uncontested invoice to the tenant’s company rather than to him personally. This invoice also included a charge for GST which is not payable on the rent for residential tenancies. j. The minimal amount of rent charged of $200.00 plus GST per month. k. The written evidence of another commercial lessee that the tenant moved his possessions into the offices and changed the locks prior to obtaining the landlord’s consent and that he understood that the tenant knew he was not meant to be living there permanently. l. The Tribunal is not persuaded on the evidence before it that the tenant was living in the offices permanently with the consent of the landlord. m. The predominant use of almost all the rest of these very large premises was commercial. n. The premises are zoned light industrial.

The parties’ tenancy is excluded by sections 2(3) and 5(1)(a) of the Residential Tenancies Act 1986 (“RTA”) and the Tribunal does not have jurisdiction to determine the issues between the parties. Suppression

Section 95A RTA provides that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

This application has been dismissed for lack of jurisdiction. The naming of the parties therefore has no public interest and suppression of the parties’ details is ordered.

Tenancy Tribunal case 4867780 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4867780 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions