What was Tenancy Tribunal case 4927353 about?

The tribunal order states: Both applications are dismissed as the Tribunal does not have jurisdiction to

How much money was awarded in case 4927353?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4927353?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4927353?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10652669-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4927353 about?

The tribunal order states: Both applications are dismissed as the Tribunal does not have jurisdiction to

How much money was awarded in case 4927353?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4927353?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4927353?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10652669-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4927353 — Boarding House

Order

Both applications are dismissed as the Tribunal does not have jurisdiction to consider them.

Reasons

Both parties attended this video hearing on 31 July 2024.
Prior to the hearing, the parties were advised that the only matters that would be considered at the hearing were the issue of jurisdiction and the application by the tenant for reduction of the fixed term tenancy. I explained those concepts to the parties at the commencement of the hearing and made it clear that if my finding was that the Tribunal did not have jurisdiction to hear this matter, then that would also apply to the tenant application for reduction of the fixed term.
There preliminary issue is whether the Tribunal can hear the claim.
Section 77(1) Residential Tenancies Act 1986 (“RTA”) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. 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. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act.
Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply. In this case that burden falls on the landlord who asserts that the Tribunal does not have jurisdiction.
Section 5(1)(n) RTA provides that the Tribunal will not have jurisdiction or power to hear a claim 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 first issue for me to consider is whether this is a boarding house. That issue can easily be disposed of as the definition of a boarding house in the RTA requires a minimum of 6 tenants at any one time. There were less than six tenants and accordingly this cannot be a boarding house.
The next issue is whether the premises were used principally as a place of residence by the landlord.
The facts are that this is a two level, five bedroom house. The tenants rented two bedrooms on the second level. The tenants had exclusive use of the two bedrooms. They had shared use of a bathroom and toilet on the second level.
The landlord had exclusive use of the three other bedrooms ( two of which are on the first level), the bathroom and toilet downstairs and the garage. The remaining areas of the premises including the dining room, lounge and laundry were shared use by the parties. The kitchen was allowed to be used by the tenant during three limited periods during the day. At all other times it was an exclusive use area for the landlord.
The only other permanent residents were the landlord and his ailing mother. The landlord’s children are at the premises on Saturdays only.
The issue of the predominant use of the landlord is not a consideration of whether the landlord has another residence elsewhere and which residence might be the landlord’s main residence. The issue is whether the landlord has greater use of the tenanted premises than the tenant. In order for the exclusion to apply, the premises must continue to be used predominantly as a residence by the landlord.
Where premises are part of the landlord’s house, but are let as self-contained premises with the exclusive possession by the tenant, then the tenancy would be unlikely to fall within the exclusion.
That is not the situation in this matter. The only areas over which the tenant has exclusive use are two bedrooms. They were not self-contained as referred to in Harding v Caroto (2021) NZHC 1265. There were other areas which were shared and areas over which the landlord had exclusive use. The areas over which the tenant has exclusive use were not a functionally independent “granny flat”.
For the reasons set out above, I consider that the exclusion ins.5(1)(n) RTA applies and the Tribunal does not have jurisdiction to consider either application. Both applications are accordingly dismissed. The Tribunal having found that it does not have jurisdiction, the parties are of course free to pursue their dispute in another forum.
Both parties have applied for name suppression. Neither party has been successful, but the result of the order is such that I do not consider there to be any public interest in publication of the party names and details and suppression of all names and details is ordered.

Order

Both applications are dismissed as the Tribunal does not have jurisdiction to consider them.

Reasons

Both parties attended this video hearing on 31 July 2024.
Prior to the hearing, the parties were advised that the only matters that would be considered at the hearing were the issue of jurisdiction and the application by the tenant for reduction of the fixed term tenancy. I explained those concepts to the parties at the commencement of the hearing and made it clear that if my finding was that the Tribunal did not have jurisdiction to hear this matter, then that would also apply to the tenant application for reduction of the fixed term.
There preliminary issue is whether the Tribunal can hear the claim.
Section 77(1) Residential Tenancies Act 1986 (“RTA”) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined as: residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. 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. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act.
Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply. In this case that burden falls on the landlord who asserts that the Tribunal does not have jurisdiction.
Section 5(1)(n) RTA provides that the Tribunal will not have jurisdiction or power to hear a claim 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 first issue for me to consider is whether this is a boarding house. That issue can easily be disposed of as the definition of a boarding house in the RTA requires a minimum of 6 tenants at any one time. There were less than six tenants and accordingly this cannot be a boarding house.
The next issue is whether the premises were used principally as a place of residence by the landlord.
The facts are that this is a two level, five bedroom house. The tenants rented two bedrooms on the second level. The tenants had exclusive use of the two bedrooms. They had shared use of a bathroom and toilet on the second level.
The landlord had exclusive use of the three other bedrooms ( two of which are on the first level), the bathroom and toilet downstairs and the garage. The remaining areas of the premises including the dining room, lounge and laundry were shared use by the parties. The kitchen was allowed to be used by the tenant during three limited periods during the day. At all other times it was an exclusive use area for the landlord.
The only other permanent residents were the landlord and his ailing mother. The landlord’s children are at the premises on Saturdays only.
The issue of the predominant use of the landlord is not a consideration of whether the landlord has another residence elsewhere and which residence might be the landlord’s main residence. The issue is whether the landlord has greater use of the tenanted premises than the tenant. In order for the exclusion to apply, the premises must continue to be used predominantly as a residence by the landlord.
Where premises are part of the landlord’s house, but are let as self-contained premises with the exclusive possession by the tenant, then the tenancy would be unlikely to fall within the exclusion.
That is not the situation in this matter. The only areas over which the tenant has exclusive use are two bedrooms. They were not self-contained as referred to in Harding v Caroto (2021) NZHC 1265. There were other areas which were shared and areas over which the landlord had exclusive use. The areas over which the tenant has exclusive use were not a functionally independent “granny flat”.
For the reasons set out above, I consider that the exclusion ins.5(1)(n) RTA applies and the Tribunal does not have jurisdiction to consider either application. Both applications are accordingly dismissed. The Tribunal having found that it does not have jurisdiction, the parties are of course free to pursue their dispute in another forum.
Both parties have applied for name suppression. Neither party has been successful, but the result of the order is such that I do not consider there to be any public interest in publication of the party names and details and suppression of all names and details is ordered.

Tenancy Tribunal case 4927353 — Boarding House

At a glance

Tenancy Tribunal case 4927353 — 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