What was Tenancy Tribunal case 4982208 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4982208?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4982208?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4982208?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11546258-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4982208 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4982208?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4982208?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4982208?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11546258-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4982208 — Boarding House

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and landlord’s name and identifying details.
[The landlord/s] are granted possession of the premises at [Tenancy address suppressed], at 11:59pm on 7 May 2025.
All other claims are dismissed.

Reasons

Both parties attended the hearings that were held over two separate days.
The landlord has applied for termination of the tenancy, possession, and compensation for outgoings in respect of the tenancy address. Background
The tenant has lived in the property at [Tenancy address suppressed] (the property) since it was purchased in 2014.
A Deed of Trust for the [The landlord trust] (the Trust) dated 10 December 2014 (the Trust Deed) records the Settlor of the Trust as [The tenant/s] and the Trustees as [The previous trustee] and the tenant. The Trust Deed records that at the date of the commencement of the Trust, the settlor wished to provide primarily for the well-being of both the tenant and [The previous trustee], and the children of the tenant. The tenant advised that at the time she was in a relationship with [The previous trustee].
On 4 July 2018 a Deed of Retirement and Appointment of New Trustees was signed (Trust Deed Variation). The Trust Deed Variation recorded the retiring trustees as the tenant and [The previous trustee] and appointed [The landlord/s] as trustees (the new Trustees). The Trust Deed Variation records the property as the only asset of the trust at the time.
There was no written tenancy agreement between the new Trustees and the tenant. However, both parties agree that at this time there was a verbal arrangement that the tenant would pay outgoings and records provided show payments being made by the tenant for council costs, insurance, and towards the mortgage – although there is some dispute over how regular these payments were, and it is not clear exactly when this arrangement commenced.
The landlord advises that this arrangement worked fine until early 2024 when payments became more irregular or ceased.
On 22 April 2024 the Trust wrote to the tenant advising that they were giving formal notice for her and all other occupants to vacate the tenancy address by 22 July 2024, as they intended to sell the property.
A certificate a title for the property provided by the landlord, shows that the current registered owners are the new Trustees. The certificate of title also shows a registered notice of claim of interest pursuant to section 42(2) of the Property (Relationships) Act 1976 by the tenant. An historical certificate of title has not been provided.
The tenant advises that there have been attempts by her lawyer to resolve issues between her and the landlord regarding the property, including an offer of cash settlement of $250,000.00 to be received on the sale of the property, which was subsequently withdrawn. Communications have been provided in respect of these discussions.
The landlord seeks an order for termination of the “tenancy” and a further order regarding a deposit of $10,000.00 the landlord says was made by the tenant without consent of the trustees of the landlord. The landlord also seeks $20,604.25 for outstanding payments relating to council rates and insurance.
The tenant submits that this is her home and was and is not a tenancy, and therefore cannot be terminated. The Law
I must first consider whether the Tribunal has jurisdiction to hear and determine the landlord’s claim.
Section 77(1) of the Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlord and tenants relating to any tenancy to which the RTA applies.
Section 2(1) of the 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 and where appropriate includes a lawful successor in title of a landlord to the premises.
The terms ‘residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined in section 2(1) of the RTA as: a. 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. b. 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 enactments; and, where appropriate, also includes a former tenancy. c. Tenancy agreement, in relation to any residential premises means any express or implied agreement under which any 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 the tenancy agreement.
Section 2(1) defines rent as meaning any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the tenant; but does not include any sum of money payable or paid by way of bond. Exclusion under section 5(1)(n)
Section 4 of the RTA provides that the RTA applies to all residential tenancies unless specifically excluded in section 5.
Section 5(1)(n) of the RTA provides that it 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 members of the landlord’s or owner’s family.
Section 2(1) defines a member of the landlord’s family or owner’s family as a. Any person who is or has been related to the landlord or owner – i. by blood: or ii. by or through marriage, a civil union, or de facto relationship; or iii. by adoption. b. Any other person who is a member of the landlord’s or owner’s whanau or other culturally recognised group: c. Any child who is being, or is to be, cared for on any continuous basis by – i. The landlord’s or owner; or ii. The landlord’s or owner; or iii. The landlord’s or owner’s spouse, civil union partner, or de facto partner.
In accordance with section 8 of the RTA, even if parties are excluded from the RTA, they can agree in writing that all the provisions of the RTA shall apply in respect of the occupation.
In all cases the onus is upon the party who contends that the RTA does not apply to establish this on the balance of probabilities. See section 10 RTA. It is also, in my opinion, incumbent on the Tribunal to determine whether it in fact has jurisdiction to consider the claim.
As some occupancies change their nature over time the applicability of a statutory exclusion must be assessed at the time that it is sought to apply it to an occupancy. 1 Analysis
There is no dispute that the property is a residential premise.
When the tenant’s occupation of the property commenced, she was a trustee of the trust. As the Trust Deed Variation recorded the property as the only asset of the trust, in the absence of an historical certificate of title, I have assumed that the property was already owned by the Trust prior to the tenant’s retirement as trustee.
In other words, the tenant was, at the time of purchasing and moving into the property, a landlord or owner and captured by the section 5(1)(n) exclusion.
When the tenant retired as a trustee of the Trust, she understood the arrangement was that she was continuing to pay for costs associated with the property.
The tenant’s right to occupy the property was however, in consideration for these payments. What these payments were used for, and the regularity of them, does not change the fact that the arrangement relating to her ability to occupy the premises required these payments being made. 1 See Phillips v Cornoneos (1986) 6 NSWLR 114 (SC).
At some stage, and prior to 2023, the tenant was also no longer a member of the landlord’s family as the relationship with [The previous trustee] had also dissolved. See Douglas v Douglas. 2
At the point where the tenant had retired as trustee of the Trust, and was no longer a member of the owner’s family, the arrangement ceased to fall within the s5(1)(n) exclusion.
The relevant date to consider the occupancy is when the notice to evict was issued, in April 2024. I am satisfied that at this date, the tenant’s licence to occupy the property was a tenancy in accordance with the RTA because: a. This was a residential premise. b. There was a verbal agreement between the landlord and tenant. c. There was a right to occupy the premise in consideration for money or rent. d. The circumstances did not fall within one of the exclusions in s5 of the RTA.
I therefore find that at the relevant time when the notice to evict was issued, there was a tenancy. Notice to evict
Pursuant to s51(2)(a) of the RTA the landlord can give a tenant notice to terminate the tenancy by giving at least 90 days’ notice if the premises are going to put on the market by the owner within 90 days after the termination date.
The notice to evict issued on 22 April 2024 clearly states that the property is being put on the market for the purpose of sale. At the hearing, the landlord advised that sale of the property was needed to repay the mortgage.
The notice in all respect appears to comply with the requirements in section 51(3) of the RTA.
Accordingly, I find that the tenancy is terminated.
The landlord has sought possession immediately. However, as the tenant has lived in the property for 10 years, I have fixed the possession date in two months to enable to tenant to find alternative suitable accommodation. Landlord’s compensation claims 2 Douglas v Douglas, District Court, Hastings (DIV-2008-020-44) 24 September 2008.
The landlord claims for $20,604.25 in outstanding council rates and insurance costs. I have only been provided with a reconciliation statement from 2023.
As I have determined that this is a tenancy and was likely so from 2018 when the tenant retired as a trustee, any tenant obligations are governed by the RTA.
Section 39 of the RTA provides that the tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises. The landlord is responsible for all outgoings in respect of the premises that are incurred whether or not the premises are occupied.
As a result, the tenant is not responsible for the cost of council rates or house insurance as these would be incurred whether or not the tenant was living in the property.
The claim for these costs is dismissed.
The landlord has also requested that a deposit of $10,000 paid in November 2023 towards a loan reduction “set off claim ruled to be part of the Trust Fund of the Trust against the loan payment/reduction”. I have insufficient information to fully understand or determine this claim, and in any event have no authority or jurisdiction to make any orders in respect of payments made into the trust fund.
This claim is dismissed. Name suppression
The tenant sought name suppression at the hearing.
Section 95A of the RTA allows the Tribunal, on application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest to order that all or part of the evidence, or the name of any identifying particulars not be published.
In the case of Erceg v Erceg, 3 at [2]-[3], [13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of considering circumstances of individual cases with consideration given to the broader public interest. 3 Erceg v Erceg [2016] NZSC 135.
While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the tenant. This decision cavasses personal details relating to family trusts, relationship property matters and dissolution of a relationship. I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion in section 95(4). The Tribunal also orders suppression of the landlord’s name. R Harvey-Lane 10 March 2025

Tenancy Tribunal case 4982208 — Boarding House

At a glance

Tenancy Tribunal case 4982208 — 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