What was the outcome of Tenancy Tribunal case 4874326?

The tribunal order states: The Tribunal has no jurisdiction.

How much money was awarded in case 4874326?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4874326?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4874326?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10477839-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4874326?

The tribunal order states: The Tribunal has no jurisdiction.

How much money was awarded in case 4874326?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4874326?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4874326?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10477839-Tenancy_Tribunal_Order.pdf.

17A Laurel Street, Mount Albert, Auckland 1025 Tenancy Tribunal Case 4874326 — Boarding House

Order

The Tribunal has no jurisdiction.
The applications are dismissed.

Reasons

Both parties attended the hearing which I conducted by phone.
The parties have each filed applications for orders following the end of this tenancy on 5 April 2024.
The hearing today was confined to the jurisdictional issue: was the tenancy a residential tenancy that falls under the Residential Tenancies Act 1986 (RTA) or was it an excluded tenancy?
The tenancy started on 8 July 2022. The rent as initially $200.00 per week which included all expenses. The landlord raised the rent 3 times, in February and August 2023 and in March 2024 after which the rent was $240.00 per week.

Is the tenancy an excluded tenancy under the RTA?

The RTA does not apply to all tenancies, some are excluded.
Section 5 RTA sets out which tenancies are excluded. Section 5(1)(n) excludes a tenancy 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 parties’ evidence establishes that Mr and Mrs Chu and their son reside at the premises which Mr and Mrs Chu own.
The Chus rented 2 rooms in their house, one to Mr Tetley and one to another tenant. Another bedroom was reserved for relatives when they visited from China.
The premises do not meet the definition of a boarding house.
There was no tenancy agreement, just an agreement about the essential terms such as rent and bond.
The rent included utilities such as power and water. Mr Tetley and the other tenant each bought their own food. They used separate bathroom facilities but otherwise the facilities, such as the kitchen, lounge and laundry were shared.
In Musson v Dobrisek (CIV-2006-032-36) the District Court discussed the section 5(1)(n) RTA exclusion. At paragraph 41, the Court said: I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed- sitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.
Here, the onus rests on the landlord who relies on the section 5(1)(n) RTA exclusion. Although Mrs Chu has filed a cross application recently, she has done that to protect her position should the Tribunal find that the exclusion she relies on does not apply.
The evidence the parties gave establishes that the premises were and are used by the landlord (the Chu family as owner of the premises) principally as their place of residence. They reserve the greater number of rooms for themselves and visiting family, and rent out 2 bedrooms to tenants, one of whom was Mr Tetley.
I find that the landlord has established that the tenancy was an excluded tenancy under section 5(1)(n) RTA because the premises, not being a boarding house, continued to be used during the tenancy principally as a place of residence by the landlord /owner of the premises and their family.
Because the tenancy is an excluded tenancy the Tribunal has no jurisdiction. The tenancy does not fall under the RTA and therefore both applications must be dismissed.
Should the parties decide to continue their claims against each other they will need to file applications in the Disputes Tribunal. They should know that an order from this Tribunal was needed before the Disputes Tribunal will accept jurisdiction, so they correctly applied to the Tenancy Tribunal first.
Upon my enquiry, neither party sought a name suppression order.

Order

The Tribunal has no jurisdiction.
The applications are dismissed.

Reasons

Both parties attended the hearing which I conducted by phone.
The parties have each filed applications for orders following the end of this tenancy on 5 April 2024.
The hearing today was confined to the jurisdictional issue: was the tenancy a residential tenancy that falls under the Residential Tenancies Act 1986 (RTA) or was it an excluded tenancy?
The tenancy started on 8 July 2022. The rent as initially $200.00 per week which included all expenses. The landlord raised the rent 3 times, in February and August 2023 and in March 2024 after which the rent was $240.00 per week.

Is the tenancy an excluded tenancy under the RTA?

The RTA does not apply to all tenancies, some are excluded.
Section 5 RTA sets out which tenancies are excluded. Section 5(1)(n) excludes a tenancy 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 parties’ evidence establishes that Mr and Mrs Chu and their son reside at the premises which Mr and Mrs Chu own.
The Chus rented 2 rooms in their house, one to Mr Tetley and one to another tenant. Another bedroom was reserved for relatives when they visited from China.
The premises do not meet the definition of a boarding house.
There was no tenancy agreement, just an agreement about the essential terms such as rent and bond.
The rent included utilities such as power and water. Mr Tetley and the other tenant each bought their own food. They used separate bathroom facilities but otherwise the facilities, such as the kitchen, lounge and laundry were shared.
In Musson v Dobrisek (CIV-2006-032-36) the District Court discussed the section 5(1)(n) RTA exclusion. At paragraph 41, the Court said: I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed- sitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.
Here, the onus rests on the landlord who relies on the section 5(1)(n) RTA exclusion. Although Mrs Chu has filed a cross application recently, she has done that to protect her position should the Tribunal find that the exclusion she relies on does not apply.
The evidence the parties gave establishes that the premises were and are used by the landlord (the Chu family as owner of the premises) principally as their place of residence. They reserve the greater number of rooms for themselves and visiting family, and rent out 2 bedrooms to tenants, one of whom was Mr Tetley.
I find that the landlord has established that the tenancy was an excluded tenancy under section 5(1)(n) RTA because the premises, not being a boarding house, continued to be used during the tenancy principally as a place of residence by the landlord /owner of the premises and their family.
Because the tenancy is an excluded tenancy the Tribunal has no jurisdiction. The tenancy does not fall under the RTA and therefore both applications must be dismissed.
Should the parties decide to continue their claims against each other they will need to file applications in the Disputes Tribunal. They should know that an order from this Tribunal was needed before the Disputes Tribunal will accept jurisdiction, so they correctly applied to the Tenancy Tribunal first.
Upon my enquiry, neither party sought a name suppression order.

Tenancy Tribunal case 4874326 — Boarding House at 17A Laurel Street, Mount Albert, Auckland 1025

At a glance

Tenancy Tribunal case 4874326 — Boarding House at 17A Laurel Street, Mount Albert, Auckland 1025

At a glance

Claims & awards

Order

Reasons

Is the tenancy an excluded tenancy under the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenancy an excluded tenancy under the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions