What was Tenancy Tribunal case 4987230 about?

The tribunal order states: The parties’ names and identifying details must not be published.

How much money was awarded in case 4987230?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4987230?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4987230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11003302-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4987230 about?

The tribunal order states: The parties’ names and identifying details must not be published.

How much money was awarded in case 4987230?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4987230?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4987230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11003302-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4987230 — Boarding House

Order

The parties’ names and identifying details must not be published.
The application is dismissed for want of jurisdiction.

Reasons

All parties attended the hearing.
The applicants claim the respondent did not provide a written tenancy agreement, did not lodge their bond, and gave inadequate notice when she ended the tenancy. They submitted in their application form: Undue stress due to being told we have to vacate property within six weeks as the landlord wants to sell the house. We are worried sick because we cannot find another home and we will be homeless. She had originally told us we could be in the home for 6-12 months
There is a preliminary issue as to whether the Tribunal has jurisdiction to hear the claim. Background
The respondent and her husband own the premises. They have rented it out for many years through a property management company. However, recently they have been contemplating selling the property, so decided not to rent it out. In the meantime, their foster son was looking for somewhere to live so they decided to let him live in the premises at a reduced rent of $250.00 per room for himself and his friends or flatmates if two bedrooms were used; and $200.00 per room if three bedrooms were used.
The respondent’s foster son moved in with the applicants. They have all recently left school and are aged in their late teens. The applicants are a couple and shared a bedroom, so paid $250.00 between themselves.
The foster son and the applicants fell out over typical flatmate type issues during the tenancy. The respondent was drawn into their disagreements as an arbiter.
A few months into the tenancy, the respondent and her husband decided they would formally put the house on the market. They gave the respondents about six weeks’ notice to move out so they could prepare the premises for marketing and sale.

Does the Tribunal have jurisdiction to hear the claim?

Legal principles

Section 77(1) Residential Tenancies Act 1986 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 of the RTA sets out a variety of circumstances where a tenancy is excluded from the Act. In other words, they have the burden of proving the Act does not apply. Section 5(1)(n) provides that, the RTA does not apply where: (n) 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...
Section 10 of the RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. Discussion
The purported “member of the owner’s family” in this case is a foster child. The respondent explained that she and her family have been supporting the young person for several years now. He lived with the rest of the family for a couple of years. He now lives away from the family home but remains in close contact. The respondent says she treats him as a family member.
The meaning of legislation must be ascertained from its text and in the light of its purpose and its context. The leading text on statutory interpretation in New Zealand says: 1 Central to the understanding of any statute is its purpose. If the purpose of an Act is clear, its text should if possible be interpreted so as to give effect to that purpose. In New Zealand, there has for over a century been a legislative direction that the purposive approach to interpretation should be used.
The respondent’s foster son was and is to all intents and purposes a genuine member of the landlord’s family. That is how he was treated in this arrangement.
I find he is a “family member” for the purposes of s 5(1)(n). 1 JF Burrows Statue Law in New Zealand (6 th ed, LexisNexis, Wellington, 2021) at 289. Footnotes omitted.
The whole arrangement was centred on providing the respondent’s foster son with a place to live. The reason the premises was not rented through a property management company with a “sweetheart deal” of only $250.00 per room for the two rooms used was because the arrangement was “for family”.
Section 5(1)(n) of the RTA disapplies the RTA “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”.
I am satisfied that the premises was not a boarding house and was used principally a place of residence by the respondent’s foster son. The applicants’ residence at the premises was not what the premises were used principally for; the applicants’ tenancy was secondary to the premises’ principal family-related use. Conclusion
The RTA is disapplied by s 5(1)(n).
The Tribunal does not have jurisdiction to hear the claim and it is dismissed. Non-publication
The respondent requests non-publication.
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. 2
The respondent has wholly succeeded in the proceedings. I don’t consider publication is in the public interest or is justified for any other reason.
Non-publication is ordered. The Tribunal may on its own initiative, having regard to the interests of the parties and to the public interest, order the name or any identifying particulars of any party not be published. 3
Publication could impact the applicants’ ability to find rental accommodation in future because property managers typically vet prospective tenants by checking 2 Residential Tenancies Act 1986 (RTA), s 95A(1). 3 RTA, s 95A(4). the Tenancy Tribunal cases website. Non-publication is in the parties’ interest and not averse to the public interest.
The Tribunal orders non-publication of the applicants’ names and identifying details.

Order

The parties’ names and identifying details must not be published.
The application is dismissed for want of jurisdiction.

Reasons

All parties attended the hearing.
The applicants claim the respondent did not provide a written tenancy agreement, did not lodge their bond, and gave inadequate notice when she ended the tenancy. They submitted in their application form: Undue stress due to being told we have to vacate property within six weeks as the landlord wants to sell the house. We are worried sick because we cannot find another home and we will be homeless. She had originally told us we could be in the home for 6-12 months
There is a preliminary issue as to whether the Tribunal has jurisdiction to hear the claim. Background
The respondent and her husband own the premises. They have rented it out for many years through a property management company. However, recently they have been contemplating selling the property, so decided not to rent it out. In the meantime, their foster son was looking for somewhere to live so they decided to let him live in the premises at a reduced rent of $250.00 per room for himself and his friends or flatmates if two bedrooms were used; and $200.00 per room if three bedrooms were used.
The respondent’s foster son moved in with the applicants. They have all recently left school and are aged in their late teens. The applicants are a couple and shared a bedroom, so paid $250.00 between themselves.
The foster son and the applicants fell out over typical flatmate type issues during the tenancy. The respondent was drawn into their disagreements as an arbiter.
A few months into the tenancy, the respondent and her husband decided they would formally put the house on the market. They gave the respondents about six weeks’ notice to move out so they could prepare the premises for marketing and sale.

Does the Tribunal have jurisdiction to hear the claim?

Legal principles

Section 77(1) Residential Tenancies Act 1986 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 of the RTA sets out a variety of circumstances where a tenancy is excluded from the Act. In other words, they have the burden of proving the Act does not apply. Section 5(1)(n) provides that, the RTA does not apply where: (n) 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...
Section 10 of the RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. Discussion
The purported “member of the owner’s family” in this case is a foster child. The respondent explained that she and her family have been supporting the young person for several years now. He lived with the rest of the family for a couple of years. He now lives away from the family home but remains in close contact. The respondent says she treats him as a family member.
The meaning of legislation must be ascertained from its text and in the light of its purpose and its context. The leading text on statutory interpretation in New Zealand says: 1 Central to the understanding of any statute is its purpose. If the purpose of an Act is clear, its text should if possible be interpreted so as to give effect to that purpose. In New Zealand, there has for over a century been a legislative direction that the purposive approach to interpretation should be used.
The respondent’s foster son was and is to all intents and purposes a genuine member of the landlord’s family. That is how he was treated in this arrangement.
I find he is a “family member” for the purposes of s 5(1)(n). 1 JF Burrows Statue Law in New Zealand (6 th ed, LexisNexis, Wellington, 2021) at 289. Footnotes omitted.
The whole arrangement was centred on providing the respondent’s foster son with a place to live. The reason the premises was not rented through a property management company with a “sweetheart deal” of only $250.00 per room for the two rooms used was because the arrangement was “for family”.
Section 5(1)(n) of the RTA disapplies the RTA “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”.
I am satisfied that the premises was not a boarding house and was used principally a place of residence by the respondent’s foster son. The applicants’ residence at the premises was not what the premises were used principally for; the applicants’ tenancy was secondary to the premises’ principal family-related use. Conclusion
The RTA is disapplied by s 5(1)(n).
The Tribunal does not have jurisdiction to hear the claim and it is dismissed. Non-publication
The respondent requests non-publication.
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. 2
The respondent has wholly succeeded in the proceedings. I don’t consider publication is in the public interest or is justified for any other reason.
Non-publication is ordered. The Tribunal may on its own initiative, having regard to the interests of the parties and to the public interest, order the name or any identifying particulars of any party not be published. 3
Publication could impact the applicants’ ability to find rental accommodation in future because property managers typically vet prospective tenants by checking 2 Residential Tenancies Act 1986 (RTA), s 95A(1). 3 RTA, s 95A(4). the Tenancy Tribunal cases website. Non-publication is in the parties’ interest and not averse to the public interest.
The Tribunal orders non-publication of the applicants’ names and identifying details.

Tenancy Tribunal case 4987230 — Boarding House

At a glance

Tenancy Tribunal case 4987230 — Boarding House

At a glance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear the claim?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear the claim?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions