What was Tenancy Tribunal case 4922633 about?

The tribunal order states: The tenants’ application for a rehearing of the Tribunal’s Order dated 14 August

How much money was awarded in case 4922633?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4922633?

The primary dispute was Healthy homes. Related themes: Boarding House.

Where can I read the official tribunal order for case 4922633?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10770331-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4922633 about?

The tribunal order states: The tenants’ application for a rehearing of the Tribunal’s Order dated 14 August

How much money was awarded in case 4922633?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4922633?

The primary dispute was Healthy homes. Related themes: Boarding House.

Where can I read the official tribunal order for case 4922633?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10770331-Tribunal_Order_Redacted.pdf.

Unit/Flat 8, 8 Southwark Avenue, Tamatea, Napier 4112 Tenancy Tribunal Case 4922633 — Healthy homes

Order

The tenants’ application for a rehearing of the Tribunal’s Order dated 14 August 2024 is granted.
The Tribunal Orders by way of declaration that it lacks jurisdiction to determine the tenant’s application which is dismissed.
The Tribunal Orders suppression of the parties’ names and identifying details.

Reasons

An Order was made dismissing the tenants’ application on 14 August 2024 because the tenants had failed to appear at the hearing.
The tenants applied for a rehearing.
A review of the file confirms that the tenants were advised that the hearing would proceed by teleconference and that they would be phoned.
Attempts were made at that hearing to phone each of the tenants, but those attempts were unsuccessful. The tenants’ evidence is that there were ready and expecting a call, but none came through. They suggest that security settings on their phones may have been the cause.
Whatever the reason, the fact is that the tenants have not had the chance to speak to their claims as they are entitled to do. That is a basis for considering that a miscarriage of justice may have occurred and to grant a rehearing,
The landlord, through her approved representative has raised the issue of whether the Tribunal has jurisdiction to hear the tenants’ claim.
The parties were advised that this hearing would consider whether there should be a rehearing of the 14 August Order and if so, would deal with the jurisdiction claim.
As I have not heard evidence previously, I can properly hear that issue. Jurisdiction - background
The landlord claims that this tenancy is exempt from the provisions of the RTA by s.5(1)(n) which provides that, “(1) This Act shall not apply in the following cases – (n) 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.”
At the outset I note 2 things about that exemption: a. it only applies where the premises are not a boarding house; and b. the question is not whether the premises are the main place of residence for the owner or owner’s family but whether that is the principal use of the premises themselves.
The premises comprise 1 x 3 bedroom home (“the main house”). There is a self-contained extension with sleep out (“the extension”) and a free standing cabin without facilities, (“the cabin”)
[Tenant 1] responded to an advertisement from the landlords for a boarder. He initially moved into the cabin. At that time [Landlord 1] and a family of four were living in the main house. [Tenant 2] and her daughter then joined [Tenant 1]. They slept in the cabin but shared the main house facilities with [Landlord 1] and the family. When the family moved out, [Tenant 1], [Tenant 2] and her daughter moved into the main house. [Landlord 2]’s niece, who had been living in the extension, moved into the main house as well and shared one of the bedrooms, paying rent.
Throughout, the extension was occupied by [Landlord 2]’s whanau. [Landlord 2] stayed in the garage.
There had been some tension in the main house, particularly between [Tenant 1] and [Landlord 1]. An agreement was signed between the parties dated 8 May 2024. It is on a standard Tenancy Services form of agreement to which the provisions of the RTA would apply. The places for providing information about Healthy Homes compliance is lined through and marked “N/A”.
[Landlord 1]’s evidence is that she played no part in the preparation of that agreement and was pressured to sign it under duress. [Tenant 1] says that the agreement was prepared by [Landlord 2], and he understood it was prepared in that format for tax purposes.
[Landlord 1]’s position is that the premises had always been the family home of she and [Landlord 2], who are now living apart. She says that has always been its principal use although the family’s income has been supplemented by having boarders.
Both [Tenant 1] and [Tenant 2] describe themselves as boarders and confirm that is how they regarded their occupation of the premises. They confirm that they had private rooms but shared common spaces in the main house, shared services and the use of facilities, provided their own food but also contributed to some common supplies. All of that is consistent with a house sharing situation rather than the renting of self-contained “premises”.

Is the tenancy an excluded tenancy?

The evidence satisfies me that although rooms in the premises were rented out to provide boarding income, the main use of the premises was as a place of residence for the landlords and their family. While several people may have occupied them at times, only two rooms in the main house and the cabin, were available to rent out. The other room in the main house was occupied by [Landlord 1].
[Landlord 2] occupied the garage, the extension and associated sleepout were occupied by [Landlord 2]’s whanau.
I therefore find that in terms of s.5(1)(n), the premises “...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 remaining issue is whether the premises were a boarding house.
Section 66B 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.”
These premises have 1 or more boarding rooms with facilities for communal use by the tenants of the boarding house.
Were they though occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time?
The tenants say they were, because at any one time there were more than 6 people living in the whole of the premises – but it is the number of “tenants”, that is relevant and what the premises comprised.
In the context of a boarding house, “premises means the boarding house, comprising the boarding rooms and all the facilities of the boarding house; and includes any part of any premises.” (s.66B RTA)
The evidence is that while there was some interaction between the residents, occupation of the extension, sleepout and garage lived in by [Landlord 2] and his whanau was quite separate from occupation of the main house by [Landlord 1] and the boarders living there.
I have no details of the arrangements between the landlords and [Landlord 2]’s whanau for their occupation of the extension and sleepout but as they are familial rather than landlord/ tenant relationships, those occupants should not be counted as tenants or the spaces they occupied counted as “boarding rooms” for the purposes of deciding whether this was a boarding house.
That being so, I find that the “premises” for the purposes of this exercise, should be regarded as limited to the main house and cabin. Those premises were not typically used or meant to be used, for 6 or more tenants at a time.
I find that the premises with which this application is concerned are not a boarding house to which the provisions of the RTA apply.
I therefore find that this tenancy is excluded from the provisions of the RTA by s.5(1)(n).

Did the parties agree that the RTA should apply?

Section 8 RTA provides that: “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.”
On its face that is the case here, with the parties having signed, on 8 May 2024, a Tenancy Services form of residential tenancy agreement.
In the circumstances described above, while there may have been an intention to formalise their situation, from the tenants’ perspective at least, I do not consider there was a mutual understanding and intention to have the RTA apply to an arrangement that would otherwise be excluded from it.
Having heard from the tenants and [Landlord 1], none of them took part in preparing the agreement and none of them seem to have considered that it would change the nature of their relationship which they continued to see as a boarding situation.
I do not find that in terms of s.8 the parties agreed to have the RTA apply to a relationship that would otherwise be excluded.
That being so, I find that the parties’ agreement is excluded from the RTA. The Tribunal has no jurisdiction to hear the claims which must therefore be dismissed.
I note, as I did at the hearing, that such an outcome is not a finding that the tenants’ claims have no merit but simply that they are not claims the Tenancy Tribunal is able to determine

Order

The tenants’ application for a rehearing of the Tribunal’s Order dated 14 August 2024 is granted.
The Tribunal Orders by way of declaration that it lacks jurisdiction to determine the tenant’s application which is dismissed.
The Tribunal Orders suppression of the parties’ names and identifying details.

Reasons

An Order was made dismissing the tenants’ application on 14 August 2024 because the tenants had failed to appear at the hearing.
The tenants applied for a rehearing.
A review of the file confirms that the tenants were advised that the hearing would proceed by teleconference and that they would be phoned.
Attempts were made at that hearing to phone each of the tenants, but those attempts were unsuccessful. The tenants’ evidence is that there were ready and expecting a call, but none came through. They suggest that security settings on their phones may have been the cause.
Whatever the reason, the fact is that the tenants have not had the chance to speak to their claims as they are entitled to do. That is a basis for considering that a miscarriage of justice may have occurred and to grant a rehearing,
The landlord, through her approved representative has raised the issue of whether the Tribunal has jurisdiction to hear the tenants’ claim.
The parties were advised that this hearing would consider whether there should be a rehearing of the 14 August Order and if so, would deal with the jurisdiction claim.
As I have not heard evidence previously, I can properly hear that issue. Jurisdiction - background
The landlord claims that this tenancy is exempt from the provisions of the RTA by s.5(1)(n) which provides that, “(1) This Act shall not apply in the following cases – (n) 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.”
At the outset I note 2 things about that exemption: a. it only applies where the premises are not a boarding house; and b. the question is not whether the premises are the main place of residence for the owner or owner’s family but whether that is the principal use of the premises themselves.
The premises comprise 1 x 3 bedroom home (“the main house”). There is a self-contained extension with sleep out (“the extension”) and a free standing cabin without facilities, (“the cabin”)
[Tenant 1] responded to an advertisement from the landlords for a boarder. He initially moved into the cabin. At that time [Landlord 1] and a family of four were living in the main house. [Tenant 2] and her daughter then joined [Tenant 1]. They slept in the cabin but shared the main house facilities with [Landlord 1] and the family. When the family moved out, [Tenant 1], [Tenant 2] and her daughter moved into the main house. [Landlord 2]’s niece, who had been living in the extension, moved into the main house as well and shared one of the bedrooms, paying rent.
Throughout, the extension was occupied by [Landlord 2]’s whanau. [Landlord 2] stayed in the garage.
There had been some tension in the main house, particularly between [Tenant 1] and [Landlord 1]. An agreement was signed between the parties dated 8 May 2024. It is on a standard Tenancy Services form of agreement to which the provisions of the RTA would apply. The places for providing information about Healthy Homes compliance is lined through and marked “N/A”.
[Landlord 1]’s evidence is that she played no part in the preparation of that agreement and was pressured to sign it under duress. [Tenant 1] says that the agreement was prepared by [Landlord 2], and he understood it was prepared in that format for tax purposes.
[Landlord 1]’s position is that the premises had always been the family home of she and [Landlord 2], who are now living apart. She says that has always been its principal use although the family’s income has been supplemented by having boarders.
Both [Tenant 1] and [Tenant 2] describe themselves as boarders and confirm that is how they regarded their occupation of the premises. They confirm that they had private rooms but shared common spaces in the main house, shared services and the use of facilities, provided their own food but also contributed to some common supplies. All of that is consistent with a house sharing situation rather than the renting of self-contained “premises”.

Is the tenancy an excluded tenancy?

The evidence satisfies me that although rooms in the premises were rented out to provide boarding income, the main use of the premises was as a place of residence for the landlords and their family. While several people may have occupied them at times, only two rooms in the main house and the cabin, were available to rent out. The other room in the main house was occupied by [Landlord 1].
[Landlord 2] occupied the garage, the extension and associated sleepout were occupied by [Landlord 2]’s whanau.
I therefore find that in terms of s.5(1)(n), the premises “...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 remaining issue is whether the premises were a boarding house.
Section 66B 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.”
These premises have 1 or more boarding rooms with facilities for communal use by the tenants of the boarding house.
Were they though occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time?
The tenants say they were, because at any one time there were more than 6 people living in the whole of the premises – but it is the number of “tenants”, that is relevant and what the premises comprised.
In the context of a boarding house, “premises means the boarding house, comprising the boarding rooms and all the facilities of the boarding house; and includes any part of any premises.” (s.66B RTA)
The evidence is that while there was some interaction between the residents, occupation of the extension, sleepout and garage lived in by [Landlord 2] and his whanau was quite separate from occupation of the main house by [Landlord 1] and the boarders living there.
I have no details of the arrangements between the landlords and [Landlord 2]’s whanau for their occupation of the extension and sleepout but as they are familial rather than landlord/ tenant relationships, those occupants should not be counted as tenants or the spaces they occupied counted as “boarding rooms” for the purposes of deciding whether this was a boarding house.
That being so, I find that the “premises” for the purposes of this exercise, should be regarded as limited to the main house and cabin. Those premises were not typically used or meant to be used, for 6 or more tenants at a time.
I find that the premises with which this application is concerned are not a boarding house to which the provisions of the RTA apply.
I therefore find that this tenancy is excluded from the provisions of the RTA by s.5(1)(n).

Did the parties agree that the RTA should apply?

Section 8 RTA provides that: “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.”
On its face that is the case here, with the parties having signed, on 8 May 2024, a Tenancy Services form of residential tenancy agreement.
In the circumstances described above, while there may have been an intention to formalise their situation, from the tenants’ perspective at least, I do not consider there was a mutual understanding and intention to have the RTA apply to an arrangement that would otherwise be excluded from it.
Having heard from the tenants and [Landlord 1], none of them took part in preparing the agreement and none of them seem to have considered that it would change the nature of their relationship which they continued to see as a boarding situation.
I do not find that in terms of s.8 the parties agreed to have the RTA apply to a relationship that would otherwise be excluded.
That being so, I find that the parties’ agreement is excluded from the RTA. The Tribunal has no jurisdiction to hear the claims which must therefore be dismissed.
I note, as I did at the hearing, that such an outcome is not a finding that the tenants’ claims have no merit but simply that they are not claims the Tenancy Tribunal is able to determine

Tenancy Tribunal case 4922633 — Healthy homes at Unit/Flat 8, 8 Southwark Avenue, Tamatea, Napier 4112

At a glance

Tenancy Tribunal case 4922633 — Healthy homes at Unit/Flat 8, 8 Southwark Avenue, Tamatea, Napier 4112

At a glance

Claims & awards

Order

Reasons

Is the tenancy an excluded tenancy?

Did the parties agree that the RTA should apply?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is the tenancy an excluded tenancy?

Did the parties agree that the RTA should apply?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions