What was Tenancy Tribunal case 4952394 about?

The tribunal order states: By way of declaration, the parties’ dispute is not one within the jurisdiction of the

How much money was awarded in case 4952394?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4952394?

The dispute type was not classified.

Where can I read the official tribunal order for case 4952394?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11034314-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4952394 about?

The tribunal order states: By way of declaration, the parties’ dispute is not one within the jurisdiction of the

How much money was awarded in case 4952394?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4952394?

The dispute type was not classified.

Where can I read the official tribunal order for case 4952394?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11034314-Tenancy_Tribunal_Order.pdf.

29 Terence Street, Tauhara, Taupo 3330 Tenancy Tribunal Case 4952394 — Tenancy dispute

Order

By way of declaration, the parties’ dispute is not one within the jurisdiction of the Tenancy Tribunal.
The application is dismissed.

Reasons

Both parties attended the hearing which was held by teleconference.
The applicant has brought this application seeking compensation for losses caused by damage to carpets in the premises.
The respondent’s position is that the parties are not landlord and tenant under a residential tenancy agreement. It says that their agreement is not one which is subject to the provisions of Residential Tenancies Act 1986 (“RTA”) and therefore the Tenancy Tribunal has no jurisdiction to hear the claim.
This hearing was limited to the question of whether the claim falls within the Tribunal's jurisdiction. I have explained to the parties that if it is determined that the Tribunal cannot hear the claim, that does not mean that the claim is dismissed as without merit, rather that the claim must be determined by another authority. The Agreement
The agreement entered into by the parties is described as “Exclusive Management Agreement”
The schedule to the agreement describes the property and notes that the rent is $500.00, to be paid weekly.
The background to the agreement states that: “This agreement gives Visions of a Helping Hand the exclusive right to manage the rental of premises referred to in the schedule..... from 2.3.21 to 22.2.24 and thereafter on an ongoing basis until terminated pursuant to the provisions of this agreement.”
Under the agreement the applicant (described as owner) appoints the respondent, (described as property manager), as the applicant’s exclusive agent to manage the property.
The applicant authorises the property manager to record the name of the property manager as agent for the landlord on any tenancy agreement and acknowledges that the respondent will act as if it was the landlord and do all things on the applicant’s behalf necessary to manage the property effectively.
Under the agreement the respondent has the authority to select tenants, rent the property to tenants, inspect the premises and provide the applicant with a copy of the inspection report. The respondent is authorised to collect a bond and lodge it with the Bond Centre.
The respondent is authorised to spend up to one weeks’ rent for repairs and maintenance.
All of those are provisions consistent with how the agreement is described ie. as a property management agreement.
Where the agreement is unusual is that it provides that the respondent should “...pay all rent on the property regardless if the tenant has paid Visions of a Helping Hand.”
That obligation would be consistent with how the applicant describes the parties’ relationship, that the respondent rents the property from him and has the authority to sub-let the property to its (sub)tenants.
I have considered whether this arrangement might fall within s.5(1)(S) RTA which excludes from the RTA an agreement which: “... is genuinely entered into to enable a tenant (the sublandlord) to sublet the premises to provide accommodation for.... (C) persons on low incomes; or (D) persons with special housing needs; or (E) persons whose disabilities mean that they need support or supervision in their housing.”
The respondent confirms that it does have properties that it sublets to tenants with such needs but says that that these premises are rented at market rates and on market terms to any applicant. The Tribunal’s Jurisdiction
Under s. 77 RTA the Tribunal is given jurisdiction to determine any dispute between a landlord and a tenant which relates to any tenancy to which the RTA applies.
Under s.2 RTA, for present purposes: a. a landlord is the grantor of a tenancy; b. a tenant is the grantee of a tenancy; c. a tenancy means “...the right to occupy the premises whether exclusively or otherwise in consideration for rent...”.
The question here is whether through their agreement, the parties intended to create what is in substance a tenancy though expressed through the form of an agreement described as a management agreement, or whether the intention was to create, in substance, a property management relationship with some features consistent with a tenancy.
Through the agreement, the applicant does not assume obligations consistent with a landlord’s obligations under the RTA.
Importantly, in my view, the agreement authorises the respondent to record itself as agent for the applicant on any tenancy agreement, giving rise to direct legal obligations between the applicant (as disclosed principal) and that tenant.
The respondent is required to advise the applicant of the tenancy being abandoned, which is inconsistent with the agreement giving the respondent itself occupation of the property.
The respondent has an obligation to use its best endeavours to ensure continuity of tenancy throughout the term of the agreement which is also inconsistent with the agreement itself conferring occupation on the respondent.
Finally, apart from ensuring the rent is paid to the applicant whether or not received from the tenant by the respondent, the respondent does not, by the agreement assume the responsibilities of a tenant under the RTA. Instead, under the agreement, “The property manager accepts appointment as the property manager under this agreement and agrees to comply with the Real Estate Institute of New Zealand (REINZ) Residential Property Management Code of Practise and all other relevant Codes of Practice that may be issued by REINZ it from time to time.”
This agreement has some unusual aspects, in particular by the respondent agreeing to ensure that rent is paid to the applicant whether or not the tenants have paid rent to the respondent. My finding though is that viewed overall, in substance the parties’ agreement is a management agreement with those unusual features. It is not, in substance, a residential tenancy agreement expressed in the form of a management agreement.
That being so I find that the applicant and the respondent are not landlord and tenant under a tenancy to which the RTA applies.
The Tenancy Tribunal according lacks jurisdiction to determine this dispute between them.

Reasons

Both parties attended the hearing which was held by teleconference.

The applicant has brought this application seeking compensation for losses caused by damage to carpets in the premises.

The respondent’s position is that the parties are not landlord and tenant under a residential tenancy agreement. It says that their agreement is not one which is subject to the provisions of Residential Tenancies Act 1986 (“RTA”) and therefore the Tenancy Tribunal has no jurisdiction to hear the claim.

This hearing was limited to the question of whether the claim falls within the Tribunal's jurisdiction. I have explained to the parties that if it is determined that the Tribunal cannot hear the claim, that does not mean that the claim is dismissed as without merit, rather that the claim must be determined by another authority. The Agreement

The agreement entered into by the parties is described as “Exclusive Management Agreement”

The schedule to the agreement describes the property and notes that the rent is $500.00, to be paid weekly.

The background to the agreement states that: “This agreement gives Visions of a Helping Hand the exclusive right to manage the rental of premises referred to in the schedule..... from 2.3.21 to 22.2.24 and thereafter on an ongoing basis until terminated pursuant to the provisions of this agreement.”

Under the agreement the applicant (described as owner) appoints the respondent, (described as property manager), as the applicant’s exclusive agent to manage the property.

The applicant authorises the property manager to record the name of the property manager as agent for the landlord on any tenancy agreement and acknowledges that the respondent will act as if it was the landlord and do all things on the applicant’s behalf necessary to manage the property effectively.

Under the agreement the respondent has the authority to select tenants, rent the property to tenants, inspect the premises and provide the applicant with a copy of the inspection report. The respondent is authorised to collect a bond and lodge it with the Bond Centre.

The respondent is authorised to spend up to one weeks’ rent for repairs and maintenance.

All of those are provisions consistent with how the agreement is described ie. as a property management agreement.

Where the agreement is unusual is that it provides that the respondent should “...pay all rent on the property regardless if the tenant has paid Visions of a Helping Hand.”

That obligation would be consistent with how the applicant describes the parties’ relationship, that the respondent rents the property from him and has the authority to sub-let the property to its (sub)tenants.

I have considered whether this arrangement might fall within s.5(1)(S) RTA which excludes from the RTA an agreement which: “... is genuinely entered into to enable a tenant (the sublandlord) to sublet the premises to provide accommodation for.... (C) persons on low incomes; or (D) persons with special housing needs; or (E) persons whose disabilities mean that they need support or supervision in their housing.”

The respondent confirms that it does have properties that it sublets to tenants with such needs but says that that these premises are rented at market rates and on market terms to any applicant. The Tribunal’s Jurisdiction

Under s. 77 RTA the Tribunal is given jurisdiction to determine any dispute between a landlord and a tenant which relates to any tenancy to which the RTA applies.

Under s.2 RTA, for present purposes: a. a landlord is the grantor of a tenancy; b. a tenant is the grantee of a tenancy; c. a tenancy means “...the right to occupy the premises whether exclusively or otherwise in consideration for rent...”.

The question here is whether through their agreement, the parties intended to create what is in substance a tenancy though expressed through the form of an agreement described as a management agreement, or whether the intention was to create, in substance, a property management relationship with some features consistent with a tenancy.

Through the agreement, the applicant does not assume obligations consistent with a landlord’s obligations under the RTA.

Importantly, in my view, the agreement authorises the respondent to record itself as agent for the applicant on any tenancy agreement, giving rise to direct legal obligations between the applicant (as disclosed principal) and that tenant.

The respondent is required to advise the applicant of the tenancy being abandoned, which is inconsistent with the agreement giving the respondent itself occupation of the property.

The respondent has an obligation to use its best endeavours to ensure continuity of tenancy throughout the term of the agreement which is also inconsistent with the agreement itself conferring occupation on the respondent.

Finally, apart from ensuring the rent is paid to the applicant whether or not received from the tenant by the respondent, the respondent does not, by the agreement assume the responsibilities of a tenant under the RTA. Instead, under the agreement, “The property manager accepts appointment as the property manager under this agreement and agrees to comply with the Real Estate Institute of New Zealand (REINZ) Residential Property Management Code of Practise and all other relevant Codes of Practice that may be issued by REINZ it from time to time.”

This agreement has some unusual aspects, in particular by the respondent agreeing to ensure that rent is paid to the applicant whether or not the tenants have paid rent to the respondent. My finding though is that viewed overall, in substance the parties’ agreement is a management agreement with those unusual features. It is not, in substance, a residential tenancy agreement expressed in the form of a management agreement.

That being so I find that the applicant and the respondent are not landlord and tenant under a tenancy to which the RTA applies.

The Tenancy Tribunal according lacks jurisdiction to determine this dispute between them.

Tenancy Tribunal case 4952394 — Tenancy dispute at 29 Terence Street, Tauhara, Taupo 3330

At a glance

Claims & awards

Tenancy Tribunal case 4952394 — Tenancy dispute at 29 Terence Street, Tauhara, Taupo 3330

At a glance

Claims & awards

Order

Reasons

Topics & place

Property management

Frequently asked questions

Order

Reasons

Topics & place

Property management

Frequently asked questions