What was the outcome of Tenancy Tribunal case 4883960?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4883960?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4883960?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4883960?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10520553-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4883960?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4883960?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4883960?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4883960?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10520553-Tenancy_Tribunal_Order.pdf.

1 King Edward Avenue, Epsom, Auckland 1023 Tenancy Tribunal Case 4883960 — Boarding House

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The tenant’s application has been dismissed for want of jurisdiction.

Reasons

The landlord attended the hearing. The tenant did not.
I am satisfied that the tenant had received proper notice of the hearing time, date and place and chose not to attend.
The tenant applied for a declaration as to jurisdiction and for compensation/damages, refund of the bond and reimbursement of the filing fee. Jurisdiction
There was no written agreement provided to the tenant. As such, she was under the reasonable belief, that she was a tenant covered by the RTA.

Is this a boarding house tenancy?

Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
The tenant provided written evidence that in the 24 hours she resided at the rental premise, she saw eight people renting rooms at the premise. Therefore, the premise is considered a boarding house under s66B of the RTA and she is a tenant.
The landlord gave evidence that he and his wife live in the premise, they are the parents of the owner of the property and they rent the other rooms in the premise to no more than three other flatmates at any one time. He gave the names of the other flatmates and proved that at the time the tenant was in residence, there were not eight people living at the premise and that there had only ever been 5 persons living in the house at one time.
I am satisfied that the landlord never envisaged setting up a boarding house and that s66B of the RTA does not apply to the relationship between the landlord/head tenant and the tenant. The law and whether the section 5(1)(n) exception in the RTA applies
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 1 King Edward Avenue, Epsom, 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 Act 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 Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act 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/head tenant confirmed that for the duration of the tenancy, he and his wife as parents of the owner of the premise lived in the house and shared kitchen, dining, lounge and laundry facilities with the other 3 tenants. He also confirmed that the house was one single dwelling and the head tenant/landlord’s areas of the house were not separate to that of the tenant. The tenant rented a bedroom and use of the shared facilities.
Section 2 of the Act, 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...”
In reality, the landlord granted the right to the tenant as a flatmate to occupy a bedroom and to share the other household facilities with him and his wife, and up to 3 other flatmates at any one time.
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”.
The nature of the relationship between the tenant and the landlord/head tenant could have been recorded in a flat sharing agreement but was not. The landlord/head tenant has assured me he will do so for any future flatmates, so the nature of the relationship is clear from the outset.
The verbal agreement between the parties, and the tenant’s misapprehension that there were 8 people living in the premise, which has led to the tenant’s confusion about the nature of her relationship with the landlord/head tenant.
Section 10 of the Act states: “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.”
The landlord/head tenant has proven, that the exception set out in s 5(1)(n) of the RTA applies by proving he and his wife continued to use the premises as their principal place of residence during the flatmate’s tenure, that s66B of the RTA does not apply and the parties have not contracted into all or part of the RTA.
There is no written agreement that mentions the parties having agreed to contract into all of any of the RTA.
Therefore, the tenant’s claim that she was a tenant that is covered by the provisions of the Act must fail. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
The tenant has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied. Name suppression
The tenant applies for non-publication of her name and identifying details.
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.
The tenant has not succeeded in her proceedings.
I consider publication is in the public interest or justified because of the tenant’s conduct in making this claim and her failing to attend the hearing while putting the landlord to the time and expense of attending the hearing when he is elderly and frail and with reasonable diligence she could have obtained information from the landlord/head tenant about the number of tenants in the premise and could have accessed the information on the Tenancy Services website or helpline that the Tenancy Tribunal had no jurisdiction over the matter.
The tenant’s claim for name suppression is dismissed and publication of her name and identifying details ordered.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The tenant’s application has been dismissed for want of jurisdiction.

Reasons

The landlord attended the hearing. The tenant did not.
I am satisfied that the tenant had received proper notice of the hearing time, date and place and chose not to attend.
The tenant applied for a declaration as to jurisdiction and for compensation/damages, refund of the bond and reimbursement of the filing fee. Jurisdiction
There was no written agreement provided to the tenant. As such, she was under the reasonable belief, that she was a tenant covered by the RTA.

Is this a boarding house tenancy?

Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
The tenant provided written evidence that in the 24 hours she resided at the rental premise, she saw eight people renting rooms at the premise. Therefore, the premise is considered a boarding house under s66B of the RTA and she is a tenant.
The landlord gave evidence that he and his wife live in the premise, they are the parents of the owner of the property and they rent the other rooms in the premise to no more than three other flatmates at any one time. He gave the names of the other flatmates and proved that at the time the tenant was in residence, there were not eight people living at the premise and that there had only ever been 5 persons living in the house at one time.
I am satisfied that the landlord never envisaged setting up a boarding house and that s66B of the RTA does not apply to the relationship between the landlord/head tenant and the tenant. The law and whether the section 5(1)(n) exception in the RTA applies
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 1 King Edward Avenue, Epsom, 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 Act 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 Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act 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/head tenant confirmed that for the duration of the tenancy, he and his wife as parents of the owner of the premise lived in the house and shared kitchen, dining, lounge and laundry facilities with the other 3 tenants. He also confirmed that the house was one single dwelling and the head tenant/landlord’s areas of the house were not separate to that of the tenant. The tenant rented a bedroom and use of the shared facilities.
Section 2 of the Act, 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...”
In reality, the landlord granted the right to the tenant as a flatmate to occupy a bedroom and to share the other household facilities with him and his wife, and up to 3 other flatmates at any one time.
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”.
The nature of the relationship between the tenant and the landlord/head tenant could have been recorded in a flat sharing agreement but was not. The landlord/head tenant has assured me he will do so for any future flatmates, so the nature of the relationship is clear from the outset.
The verbal agreement between the parties, and the tenant’s misapprehension that there were 8 people living in the premise, which has led to the tenant’s confusion about the nature of her relationship with the landlord/head tenant.
Section 10 of the Act states: “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.”
The landlord/head tenant has proven, that the exception set out in s 5(1)(n) of the RTA applies by proving he and his wife continued to use the premises as their principal place of residence during the flatmate’s tenure, that s66B of the RTA does not apply and the parties have not contracted into all or part of the RTA.
There is no written agreement that mentions the parties having agreed to contract into all of any of the RTA.
Therefore, the tenant’s claim that she was a tenant that is covered by the provisions of the Act must fail. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.
The tenant has not been wholly or substantially successful in her application. Therefore, her application for reimbursement of the filing fee is denied. Name suppression
The tenant applies for non-publication of her name and identifying details.
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.
The tenant has not succeeded in her proceedings.
I consider publication is in the public interest or justified because of the tenant’s conduct in making this claim and her failing to attend the hearing while putting the landlord to the time and expense of attending the hearing when he is elderly and frail and with reasonable diligence she could have obtained information from the landlord/head tenant about the number of tenants in the premise and could have accessed the information on the Tenancy Services website or helpline that the Tenancy Tribunal had no jurisdiction over the matter.
The tenant’s claim for name suppression is dismissed and publication of her name and identifying details ordered.

Tenancy Tribunal case 4883960 — Boarding House at 1 King Edward Avenue, Epsom, Auckland 1023

At a glance

Tenancy Tribunal case 4883960 — Boarding House at 1 King Edward Avenue, Epsom, Auckland 1023

At a glance

Claims & awards

Order

Reasons

Is this a boarding house tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is this a boarding house tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions