What was Tenancy Tribunal case 4938535 about?

The tribunal order states: The application is dismissed as the Tribunal does not have jurisdiction.

How much money was awarded in case 4938535?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4938535?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4938535?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10866735-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4938535 about?

The tribunal order states: The application is dismissed as the Tribunal does not have jurisdiction.

How much money was awarded in case 4938535?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4938535?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4938535?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10866735-Tribunal_Order_Redacted.pdf.

61 Awaroa Road, Sunnyvale, Auckland 0612 Tenancy Tribunal Case 4938535 — Boarding House

Order

The application is dismissed as the Tribunal does not have jurisdiction.

Reasons

Both parties attended the hearing, which was set down to determine whether the Tribunal has jurisdiction. Background
The respondent lives at the property with this wife and two children.
The property has a total of four bedrooms, two bathrooms and an open plan kitchen, dining and living area.
In 2023, the respondent advertised a room to rent on the Facebook page “Auckland Flatmates and Flats wanted.”
On 17 November 2023, the applicant moved into one of the bedrooms. They had exclusive use of this bedroom and one of the bathrooms. The respondent occupied one bedroom, and his wife and children occupied another bedroom.
The third bedroom was used as the respondent’s office, a storage space for the respondent and also tenanted to a third party at various points in time.
The applicant used the backdoor to enter and exit the property. The respondent and his family used the front door.
The parties shared the kitchen, dining and living area. They also shared utensils and appliances such as the microwave, kettle etc. The property has a grassy lawn area, which the parties shared. It also has a single, tandem carport, which the parties shared.
There was an agreement titled “Rental agreement (room)”. The copy provided to the Tribunal was not signed by either of the parties. The respondent is recorded as the “owner”. No description was given to the applicant. The agreement recorded that the rent was $350.00 per week and included water, power, wifi, bed and utensils. The respondent sent the applicant a copy of the “House Rules” in a text message.
In all text communication, the respondent referred to the applicant as “tenant/s”. In his submissions to the Tribunal, the respondent referred to himself as the “former landlord” of the applicant. Despite this, the respondent submitted that the relationship between himself and the applicant was one of flatmates, not landlord and tenant. In contrast, the applicant submitted that the relationship was one of landlord and tenant.
The issue that I have to determine is whether this was a flatmate or landlord and tenant relationship.

Was this a flatmate or landlord and tenant relationship?

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 every tenancy for residential purposes except as specifically provided.
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. Residential premises means any premises used or intended for occupation by any person as a place of residence. Tenancy in relation to any residential premises means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. The applicant lived in a residential house and paid the respondent $350.00 per week (later $380.00 per week). This sounds like a residential tenancy.
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 the RTA does not apply, they must establish the facts supporting their contention. In other words, the landlord has the burden of proving the RTA does not apply to the living arrangement involving the tenant.
Section 5(1)(n) states the RTA does not apply “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.”
When determining whether the RTA is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied. The fact that the respondent advertised the property on a Facebook page titled “Auckland flatmates and flats wanted” is not determinative. Neither is the fact that the respondent referred to the applicant as “tenant” in text communication. The Tribunal looks behind labels to establish the true nature of the living situation.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, the District Court considered tenancy premises where the owner lived in one bedroom and rented the other eight bedrooms out to people. Everyone shared the use of the kitchen, lounge and bathroom, known as the “common areas.” The District Court held that the relevant question in cases where the landlord lives at the property they also rent out, is whether the principal use of the premises is as a place of residence by the landlord. “[39]... So the question to be asked is – Is the principal use of these premises as a place of residence by the landlord? [40] Put in this way, the clear answer, on the cases of both sides, is “no.” Mr Musson occupied one bedroom out of nine, and shared the common area equally with the other occupants. Far from Mr Musson’s use of the property being “principal”, it was commensurate with that of the other occupants. [41] 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 bedsitting room to a tenant or sub-tenant while the principal use of the house remains accommodation for the landlord and the landlord’s family. On this reading, the exception could only apply 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.”
Applying Musson, I find that the respondent’s principal use of the premises was as a place of residence for himself and family for the following reasons: a. The respondent and his family occupied half of the bedrooms in the house (two out of four). This indicates that the main purpose of the premises was to provide a principal place of residence for the respondent and his family, rather than to generate an income. b. The respondent rented out the other two bedrooms to a maximum of three people at any one time. The low number of tenants that the respondent rented out the remaining bedrooms to indicates that the principal use of the premises was to provide accommodation for him and his family, rather than a commercial arrangement. c. The respondent and his family were living in the property when the applicant moved in and continued living in the property while the applicant was there. d. The respondent and his family do not own or live in any other properties.
The situation in this case is quite different to Musson where the landlord only occupied one bedroom and rented out the remaining eight. I consider this case falls within the exception described in Musson of “small scale and limited letting”, while the principal use of the property remained as a residence for the respondent and his family.
I do not consider that the bedroom and bathroom occupied by the applicant in this case constituted its own “premise” for the purpose of section 5(1)(n). The only areas over which the applicant had exclusive use were his bedroom and a bathroom. These were located within the main house and were not separated in any meaningful way from the main dwelling. The parties shared the use of the kitchen, dining and living area of the house, as well as the lawn and carport. The pantry and fridge were shared, and the applicant was allocated his own shelves. The kitchen appliances and utensils were also shared. The applicant’s bedroom and bathroom was not “self-contained”, “fully functioning” or “independent” like the granny flat in Harding v Shellevis & Ors [2021] NZHC 1265. This is not a case where there were two separate and distinct household units. I am satisfied that the relevant premises in the present case is the whole property, which was used principally as a place of residence by the respondent and his family. Conclusion and name suppression
The RTA does not apply, as the premises were used principally as a place of residence by the respondent and his family during the applicant’s tenancy. See section 5(1)(n) RTA.
I have considered both parties’ application for name suppression. Given my decision that the RTA does not apply, I do not consider that there is any public interest in publishing the parties’ names. I have granted name suppression to both parties.

Order

The application is dismissed as the Tribunal does not have jurisdiction.

Reasons

Both parties attended the hearing, which was set down to determine whether the Tribunal has jurisdiction. Background
The respondent lives at the property with this wife and two children.
The property has a total of four bedrooms, two bathrooms and an open plan kitchen, dining and living area.
In 2023, the respondent advertised a room to rent on the Facebook page “Auckland Flatmates and Flats wanted.”
On 17 November 2023, the applicant moved into one of the bedrooms. They had exclusive use of this bedroom and one of the bathrooms. The respondent occupied one bedroom, and his wife and children occupied another bedroom.
The third bedroom was used as the respondent’s office, a storage space for the respondent and also tenanted to a third party at various points in time.
The applicant used the backdoor to enter and exit the property. The respondent and his family used the front door.
The parties shared the kitchen, dining and living area. They also shared utensils and appliances such as the microwave, kettle etc. The property has a grassy lawn area, which the parties shared. It also has a single, tandem carport, which the parties shared.
There was an agreement titled “Rental agreement (room)”. The copy provided to the Tribunal was not signed by either of the parties. The respondent is recorded as the “owner”. No description was given to the applicant. The agreement recorded that the rent was $350.00 per week and included water, power, wifi, bed and utensils. The respondent sent the applicant a copy of the “House Rules” in a text message.
In all text communication, the respondent referred to the applicant as “tenant/s”. In his submissions to the Tribunal, the respondent referred to himself as the “former landlord” of the applicant. Despite this, the respondent submitted that the relationship between himself and the applicant was one of flatmates, not landlord and tenant. In contrast, the applicant submitted that the relationship was one of landlord and tenant.
The issue that I have to determine is whether this was a flatmate or landlord and tenant relationship.

Was this a flatmate or landlord and tenant relationship?

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 every tenancy for residential purposes except as specifically provided.
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. Residential premises means any premises used or intended for occupation by any person as a place of residence. Tenancy in relation to any residential premises means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. The applicant lived in a residential house and paid the respondent $350.00 per week (later $380.00 per week). This sounds like a residential tenancy.
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 the RTA does not apply, they must establish the facts supporting their contention. In other words, the landlord has the burden of proving the RTA does not apply to the living arrangement involving the tenant.
Section 5(1)(n) states the RTA does not apply “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.”
When determining whether the RTA is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied. The fact that the respondent advertised the property on a Facebook page titled “Auckland flatmates and flats wanted” is not determinative. Neither is the fact that the respondent referred to the applicant as “tenant” in text communication. The Tribunal looks behind labels to establish the true nature of the living situation.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, the District Court considered tenancy premises where the owner lived in one bedroom and rented the other eight bedrooms out to people. Everyone shared the use of the kitchen, lounge and bathroom, known as the “common areas.” The District Court held that the relevant question in cases where the landlord lives at the property they also rent out, is whether the principal use of the premises is as a place of residence by the landlord. “[39]... So the question to be asked is – Is the principal use of these premises as a place of residence by the landlord? [40] Put in this way, the clear answer, on the cases of both sides, is “no.” Mr Musson occupied one bedroom out of nine, and shared the common area equally with the other occupants. Far from Mr Musson’s use of the property being “principal”, it was commensurate with that of the other occupants. [41] 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 bedsitting room to a tenant or sub-tenant while the principal use of the house remains accommodation for the landlord and the landlord’s family. On this reading, the exception could only apply 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.”
Applying Musson, I find that the respondent’s principal use of the premises was as a place of residence for himself and family for the following reasons: a. The respondent and his family occupied half of the bedrooms in the house (two out of four). This indicates that the main purpose of the premises was to provide a principal place of residence for the respondent and his family, rather than to generate an income. b. The respondent rented out the other two bedrooms to a maximum of three people at any one time. The low number of tenants that the respondent rented out the remaining bedrooms to indicates that the principal use of the premises was to provide accommodation for him and his family, rather than a commercial arrangement. c. The respondent and his family were living in the property when the applicant moved in and continued living in the property while the applicant was there. d. The respondent and his family do not own or live in any other properties.
The situation in this case is quite different to Musson where the landlord only occupied one bedroom and rented out the remaining eight. I consider this case falls within the exception described in Musson of “small scale and limited letting”, while the principal use of the property remained as a residence for the respondent and his family.
I do not consider that the bedroom and bathroom occupied by the applicant in this case constituted its own “premise” for the purpose of section 5(1)(n). The only areas over which the applicant had exclusive use were his bedroom and a bathroom. These were located within the main house and were not separated in any meaningful way from the main dwelling. The parties shared the use of the kitchen, dining and living area of the house, as well as the lawn and carport. The pantry and fridge were shared, and the applicant was allocated his own shelves. The kitchen appliances and utensils were also shared. The applicant’s bedroom and bathroom was not “self-contained”, “fully functioning” or “independent” like the granny flat in Harding v Shellevis & Ors [2021] NZHC 1265. This is not a case where there were two separate and distinct household units. I am satisfied that the relevant premises in the present case is the whole property, which was used principally as a place of residence by the respondent and his family. Conclusion and name suppression
The RTA does not apply, as the premises were used principally as a place of residence by the respondent and his family during the applicant’s tenancy. See section 5(1)(n) RTA.
I have considered both parties’ application for name suppression. Given my decision that the RTA does not apply, I do not consider that there is any public interest in publishing the parties’ names. I have granted name suppression to both parties.

Tenancy Tribunal case 4938535 — Boarding House at 61 Awaroa Road, Sunnyvale, Auckland 0612

At a glance

Claims & awards

Tenancy Tribunal case 4938535 — Boarding House at 61 Awaroa Road, Sunnyvale, Auckland 0612

At a glance

Claims & awards

Order

Reasons

Was this a flatmate or landlord and tenant relationship?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Was this a flatmate or landlord and tenant relationship?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions