What was Tenancy Tribunal case 4934114 about?

The tribunal order states: [The landlord] must pay [The tenant] $160.00 immediately, calculated as shown

How much money was awarded in case 4934114?

Centre: $120.00 awarded to landlord; Compensation: (Partial bond refunded…: $280.00 awarded to tenant

What type of tenancy dispute was case 4934114?

The dispute type was not classified.

Where can I read the official tribunal order for case 4934114?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10708711-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4934114 about?

The tribunal order states: [The landlord] must pay [The tenant] $160.00 immediately, calculated as shown

How much money was awarded in case 4934114?

Centre: $120.00 awarded to landlord; Compensation: (Partial bond refunded…: $280.00 awarded to tenant

What type of tenancy dispute was case 4934114?

The dispute type was not classified.

Where can I read the official tribunal order for case 4934114?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10708711-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4934114 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4934114 — net $160.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Centre	$120.00		Centre
Compensation: (Partial bond refunded to the		$280.00	(Partial bond refunded to the
Total award	$120.00	$280.00
Net award		$160.00
Total payable by Landlord to Tenant		$160.00

Claims and awards in Tenancy Tribunal application 4934114 — net $160.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Centre	$120.00		Centre
Compensation: (Partial bond refunded to the		$280.00	(Partial bond refunded to the
Total award	$120.00	$280.00
Net award		$160.00
Total payable by Landlord to Tenant		$160.00

Order

[The landlord] must pay [The tenant] $160.00 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing today. The landlord was assisted by a mandarin speaking interpreter. Three of the other five tenants also attended the hearing. Two as witnesses and one as a support person to the landlord.
The tenant has applied for a declaration that section 5(1)(n) of the Residential Tenancies Act 1986 (“RTA”) applies and the Tribunal has no jurisdiction to hear this matter. In the alternative, the tenant applies for a reduction of his fixed term tenancy to 25 June 2024, a reduction of the $280.00 break lease fee being charged by the landlord, refund of the remainder of his bond, and reimbursement of the filing fee. Jurisdiction Relevant law
The Tribunal has jurisdiction to hear disputes between landlords and tenants provided the dispute relates to a tenancy to which the Residential Tenancies Act 1986 (“RTA”) applies.
The onus of proving that the Tribunal does not have jurisdiction falls on the party asserting that the Tribunal does not have Jurisdiction (see section10 RTA). In this case, that onus falls on Mr Blackaby.
Section 77 and 82(1) RTA, gives the Tenancy Tribunal sole originating jurisdiction to determine in accordance with the RTA all disputes arising between landlords and tenants in relation to any tenancy to which the RTA applies.
Section 2 RTA sets out the following material definitions: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement 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 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 Premises is defined as including: a. Any part of any premises; and b. Any land and appurtenances, other than facilities; and c. Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land. 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;
Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.”
Prima facie, the premises at [address suppressed] (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.

Does a section 5 exception apply?

The exemptions to the RTA are contained in section 5. 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.”
Under s 5 of the Act, member of the landlord's or owner's family means any person who is related to the landlord or owner by blood, or through marriage, a civil union, or a de facto relationship; or by adoption. This section envisages owners of a home renting out their spare rooms in a flatmate or boarding type situation.
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the RTA’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.
The landlord and the tenant confirmed that two of the landlord’s daughters reside in the premises and have resided in the premise for the duration of the tenant’s tenancy. They are two of six tenants listed on the tenancy agreement. Therefore, prima facie, the s5(1)(n) exemption applies to the tenancy, unless the parties lawfully contracted back into the RTA

Did the parties lawfully contract back into the RTA?

Section 8 of the RTA states: “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”.
For a party to rely on section 8(1) of the RTA to invalidate a section 5 exemption, that party must be able to prove that the parties had a specific intention to contract back into the RTA and the tenancy agreement must specifically state what parts of the RTA the tenants are contracting back into and if they have agreed to modify any of the RTA provisions.
Section 10 of the RTA 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.”
Section 11 of the states: (1) “Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a)the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b)the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2)Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3)Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect”.
Section 11 of the RTA affords far more protection to a tenant who has purported to waive his/her/their rights under the RTA than it does to a landlord who has voluntarily given up its rights under the RTA. In Robinson v Auckland City Council 1 the High Court held that under s 11(3) a tenant, unlike a landlord, cannot contract out of his/her/their rights under the RTA, unless the inconsistency, exclusion, modification, or restriction is expressly permitted by the RTA 2 , or having regard to the nature of the tenancy, the provisions of the tenancy agreement the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted 3 .
So, in the present case, the tenant must prove, on the balance of probabilities, that s 5(1)(n) applies and that he did not contract into the RTA or that the purported waiver by the tenant of any right or power conferred upon the tenant by the RTA should be found to be of no effect. 1 Robinson v Auckland City Council HC Auckland HC70/95,29 September 1995, [8]-[9]. 2 Residential Tenancies Act 1984, s11(1)(a). 3 Residential Tenancies Act 1984, s11(1)(b).
The tenant confirmed to me: a. He knew two of the six tenants were related to the landlord and as such that prima facie the RTA would not apply, unless the parties agreed to contract into the RTA; b. His intention was to be bound as a jointly and severally liable party as a tenant to the tenancy agreement; c. He was aware of clause 3 on page 5 of the tenancy agreement that says “The agreement is subject to the Residential Tenancies Act 1986”; and d. He was a bit naïve but he did agreed to the RTA applying to the relationship between him, the other tenants and the landlord.
Clause 3 of page 5 of the tenancy agreement does not expressly state what provisions of the RTA will not apply to the Agreement between the parties. If the tenants expressly agreed that the s5(1)(n) exemption would not apply, the clause should have expressly stated “The agreement is subject to the Residential Tenancies Act 1986, except for the parties express agreement that the s5(1)(n) exemption will not apply to this Agreement” and it does not. Not being held to the exemption is to the benefit of the landlord and not the tenants, so I must consider whether the tenant did knowingly, willingly and deliberately agree to waive his right to have s5(1)(n) apply to his tenancy.
Agreeing that the RTA applies, in its plain meaning, means the parties agree that the whole of the RTA applies, including the s5 exemptions. It could also mean that the parties intended s66B of the RTA to apply.
Given that there are six tenants occupying this premise, I must also consider if section 66 B of the RTA applies to this tenancy. This section 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 evidence given to me by the parties confirms: a. The tenant agreed to rent the premise with an intermediate school friend of his, her sister, her sister’s boyfriend and two other persons he did not know until he agreed to rent a house with them; b. The tenant did not rent a room from the landlord and neither the landlord or the tenant intended the tenant to rent a boarding house room from the landlord; c. The tenant’s room was the only one that locked, but this does not mean it is the only boarding house room as the landlord did not choose which room the tenant rented, the tenants arranged between them which rooms they each took. Further, the tenant lived with a friend and her sister and did not feel the need to lock his room. He even let them store some belongings in his room when he was away; d. The tenants all agreed to renting the premise together in September 2023 and were all clear that four of the six tenants had rented the house with two others in 2023 and they were looking to bring in two more tenants for the following university year; and e. The tenants were respectful of each other’s private space in their rooms but did not have exclusive rights to occupy their rooms in the tenancy agreement.
I am satisfied the relationship between the tenant and the landlord was not a boarding house relationship. Therefore, I need to determine if the tenant waived his right to have s5(1)(n) apply to the tenancy relationship.
Based on the District Court’s finding in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, I need to give effect to the RTA’s true intent and meaning, by interpreting the s5(1)(n) exemption strictly and not liberally.
I am not satisfied the wording in clause 3 of page 5 of the tenancy agreement is sufficient for me to find the tenant waived his right to have that exemption apply to his tenancy.
However, the tenant’s evidence that he knew that he was renting with two daughters of the landlord and that all parties intended the exemption to apply (which the parties also confirmed was the reason clause 3 was inserted). The landlord has relied on the tenant’s written consent to waive his rights not to have all of the RTA apply to his tenancy, to its potential detriment, and he should be estopped from trying to renege on his agreement to waive his rights to have the s5(1)(n) exemption apply.
I am satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction, clause 3 of page 5 of the tenancy agreement should be read as it was intended “The agreement is subject to the Residential Tenancies Act 1986, except for the parties express agreement that the s5(1)(n) exemption will not apply to this Agreement” and s5(1)(n) of the RTA does not apply.
I find the Tribunal has the jurisdiction to determine the tenant’s claims under a residential tenancy agreement.

Should the tenant have his notice period reduced to 25 June 2024?

The tenant gave notice to the landlord by email on 19 May 2024 that he wanted to end his tenancy on 25 June 2024. He had agreed to rent the premise with the other tenants from 1 January 2024 to 31 December 2024.
The tenant and his mother, who speaks mandarin, also spoke to the landlord about the sudden financial difficulties the tenant had unexpectantly found himself in and that this financial distress left him with no other option but to return to Auckland to live with his parents as they could offer him emotional support, food, and a roof over his head for $200.00 per week. The tenant says he cannot pay $182.50 rent per week to the landlord and $200.00 per week board to his parents for the same period, being 25 June 2024 to 26 July 2024. The tenant requested that I reduce his notice period to 25 June 2024 and reimburse him for the $860.35 rent over payment for that period.
The fixed term tenancy did not come to an end when the tenant moved out. The tenancy continued and he and his fellow tenants had to try to find a suitable tenant to take over his part of the rent.
The tenants confirmed the tenant had been unsuccessful at finding a suitable tenant to replace him on the tenancy agreement. The one he found in April 2024 was an unemployed vapor that the landlord considered to be unsuitable and so did not consent too. T
Th tenant says he continued to advertise the vacancy on Facebook only as he could not afford to list the vacancy on Trade me. He did not find a suitable tenant using this advertising method. The other tenants ended up finding a suitable tenant to replace him and got that tenant approved by the landlord. He moved in on 27 July 2024.
I find that the tenant should be liable for rent up to the date a new tenant moved into his room and took overpaying his portion of the rent and that the other rent paying tenants would be financially penalised if they had to take up paying the additional $182.50 rent per week o top of their rental payments. They say this would cause them undue financial distress and that the tenant would have been held liable for rent for a longer period if it had been left up to him to find a suitable replacement tenant. I agree with them.
The landlord provided rent records which prove the tenant has paid his rent in full to 26 July 2024 and there are no rent arrears. Should the tenant be liable for the costs incurred by the landlord for leaving the tenancy early?
The landlord was left in a position where it had to administer the partial refund of the tenant’s bond to him and the other portion to them, the new tenant’s bond being registered with and lodged with the bond centre, a change in tenant form completed to add the new tenant to the tenancy agreement and release the tenant from any further obligations under the tenancy.
When a tenant leaves a tenancy earlier than they agreed to in the lease, landlords are entitled to recover reasonable expenses that accrue during the assignment process. They must provide the tenant with a breakdown of the expenses and invoices for the costs incurred. Even when the tenant finds their own replacement, the landlord may still be entitled to charge for any reasonable costs already incurred during the assignment process. If there is disagreement over whether the costs the landlord are charging are reasonable, either the landlord or tenant can apply to the Tenancy Tribunal to determine what costs should be paid.
The tenant applied to the Tribunal to have the $280.00 “break lease” costs reduced.
I am satisfied it is reasonable for the tenant to be held liable for the $120.00 of the $280.00 costs incurred by the landlord. The other costs would be reasonable to charge if the fixed term tenancy agreement had been broken by all the tenants. This is not the case. One tenant needed to have his part of the tenancy assigned to a new tenant. The administration fees the landlord would not have incurred but for the tenant wanting to end his tenancy earlier than 31 December 2024 amounts to $120.00 and I grant the landlord $120.00 compensation. Reimbursement of the filing fee
Section 102(4) of the RTA confirms the Tribunal must order that the respondent pay the applicant the filing fee paid for the application if he/she/they have been wholly or substantially successful in his/her/their claim.
The tenant has been partially, but not wholly or substantially successful in his application. I therefore dismiss his claim for reimbursement of the filing fee. Name suppression
The tenant applies for non-publication of his 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 substantially succeeded in his proceedings, but I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
Non-publication of the tenant’s name is ordered.
The landlord made an application during the hearing for its name and identifying details to be suppressed.
I am satisfied that the public interest in this matter does not outweigh the significant duress publishing the landlord’s names and identifying details could result in when the seek to attract future tenants. I therefore used my discretion to grant it suppression of its name and identifying details. Comment
I would like to acknowledge the tenant’s daughter who was immensely helpful in assisting the Tribunal to work through the evidence in a logical and rational way in what initially appeared to me on the papers to be a very complex and unusual tenancy situation.
Although the Tribunal is not an advisory body, the Tribunal recommends that the landlord in any future tenancies takes far more care in making it expressly known in the tenancy agreement what specific parts of the RTA do and do not apply to the tenancy, and why, if it intends to contract into or out of the RTA.
All parties to the tenancy agreement need to be very clear whether the s5(1)(n) exemption applies or not and they should initial the bottom of that page of the Agreement to confirm they have read and understood that specific waiver of their rights under the RTA.
Had the tenant not confirmed he knew he was living with family of the owner/landlord and agreed to rent the premise on the understanding all the other terms of the RTA applied, except the s5(1)(n) exemption, I would have found the RTA did apply, including the s5(1)(n) exemption.

Tenancy Tribunal case 4934114 — Tenancy dispute

At a glance

Tenancy Tribunal case 4934114 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Does a section 5 exception apply?

Did the parties lawfully contract back into the RTA?

Should the tenant have his notice period reduced to 25 June 2024?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Does a section 5 exception apply?

Did the parties lawfully contract back into the RTA?

Should the tenant have his notice period reduced to 25 June 2024?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions