What was the outcome of Tenancy Tribunal case 5034450?

The tribunal order states: The application is struck out for want of jurisdiction.

How much money was awarded in case 5034450?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5034450?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 5034450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11508401-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5034450?

The tribunal order states: The application is struck out for want of jurisdiction.

How much money was awarded in case 5034450?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5034450?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 5034450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11508401-Tenancy_Tribunal_Order.pdf.

4 Potter Avenue, Wesley, Auckland 1041 Tenancy Tribunal Case 5034450 — Healthy homes

Order

The application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing. Mr Kashyap represented the applicant tenant. Mr Orange represented the respondent landlord.
The applicant seeks compensation for failure by the landlord to maintain and repair the premises and to comply with the Healthy Homes Standards.
The premises here are part of a building which is primarily commercial in nature. The applicant operates the premises as a dairy business under the trading name Potters Superette.
The applicant says the accommodation area of the premises should be subject to the additional rights and obligations imposed on landlords of residential tenancies set out in the Residential Tenancies Act 1986 (the Act).
Mr Orange submits that the premises do not come within the Act.

Does the Tribunal have jurisdiction to hear the claims?

The Tribunal only has jurisdiction to hear disputes between landlords and tenants provided the dispute is in relation to a tenancy which comes within the Act.
The starting point in answering the question of whether the tenancy comes within the Act is section 4 which provides that the Act applies to all tenancies of residential premises unless specifically excluded.
Section 5 contains a list of occupancies which are excluded from the Act. The relevant one here is section 5(1)(a) which provides that the Act does not apply to premises that are commercial premises. “Commercial premises” are defined in section 2(1) to mean “premises that are not residential premises”. “Residential premises” are defined in the same section as “any premises used or intended for occupation by any person as a place of residence”.
In the situation where there is a dual use of the premises (as here), section 2(3) of the Act applies. This section provides that where premises are used for both commercial and residential purposes the premises are deemed to be residential premises unless it is proved that the premises were let principally for purposes other than residential.
Counsel for the applicant says that the landlord has failed to maintain the property from the time the lease was entered into. He says that the premises were impacted by the Auckland severe weather events which resulted in the property being uninhabitable.
Counsel for the applicant seeks to have a rent refund for the accommodation portion of the premises. He submits that it is only within the last month or so the landlord has started to inspect the property. Counsel says the tenant is paying the rent and the rates and has paid all the rates for the accommodation even though the tenant is not living there.
Counsel submits that there are certain features indicating a residential tenancy such as the recording of heat pumps on the equipment list of the lease agreement. There is also a diagram which highlights part of premises which suggests residential use.
There are two rates notices – one for commercial and one for residential. Counsel also confirmed that the landlord was living there at the time the lease was signed. The applicant provided a copy of the Deed of Lease dated 1 December 2015 which I have sighted and carefully considered. The Lease confirms the use of the premises to be that of business use: dairy/superette.
Counsel for the respondent submits that s5 RTA of the Act has no jurisdiction over commercial premises. He also refers to s2 of the Act. He further submits that one must look at the principal purpose for which the premises were let.
Counsel referred me to Main v Main [2007] NZCA 306 which held in that case that the residential use was incidental to the commercial use.
Counsel for the respondent says that it is illogical to argue that this is a residential tenancy. He says that this is a company and that companies do not require residential premises. They require commercial premises. He also says that it has never been used as residential premises. Counsel submits that one must look at the intention of the use. He further says that there could be certainty if they were dealing with a natural person. In this case they have a non-natural person, a company.
I am completely satisfied that the premises here were let principally for commercial purposes. I am also satisfied that the kitchen, lounge, room 1 and room 2 as recorded on the plan is incidental to the commercial space. The evidence provided, in my view, clearly confirms this. I also accept that the applicant leased the premises for the principal purpose of carrying on the business of a dairy.
I do not consider that the extended definition of premises applies here. The parties entered into a commercial deed of lease for the entire building, including the accommodation, and as mentioned above, it is clear that the purpose of the lease was for the applicant to carry on the business of a dairy and superette. In my view the use of the accommodation was merely incidental to the principal purpose of the building.
This situation is different from the situation in Kahi v Lucas HC Auckland HC81/96, 23 September 1996, a leading case on the meaning of “part of any premises” in the section 2 definition. In that case the landlord had a lease of commercial premises. He used the ground floor of the premises as a mechanical garage, and he sublet the top floor of the building to a tenant for residential purposes. The High Court held that, because premises could include part of any premises and the top floor was residential, the sublease came within the Act. However, as mentioned, here the applicant leased the entire building for commercial purposes. It is not a situation where there is a separate lease for the dairy’s accommodation only.
I am therefore satisfied that the premises were let principally for commercial purposes and the Tribunal has no jurisdiction to hear the claims.
The application is therefore struck out for want of jurisdiction.

Order

The application is struck out for want of jurisdiction.

Reasons

Both parties attended the hearing. Mr Kashyap represented the applicant tenant. Mr Orange represented the respondent landlord.
The applicant seeks compensation for failure by the landlord to maintain and repair the premises and to comply with the Healthy Homes Standards.
The premises here are part of a building which is primarily commercial in nature. The applicant operates the premises as a dairy business under the trading name Potters Superette.
The applicant says the accommodation area of the premises should be subject to the additional rights and obligations imposed on landlords of residential tenancies set out in the Residential Tenancies Act 1986 (the Act).
Mr Orange submits that the premises do not come within the Act.

Does the Tribunal have jurisdiction to hear the claims?

The Tribunal only has jurisdiction to hear disputes between landlords and tenants provided the dispute is in relation to a tenancy which comes within the Act.
The starting point in answering the question of whether the tenancy comes within the Act is section 4 which provides that the Act applies to all tenancies of residential premises unless specifically excluded.
Section 5 contains a list of occupancies which are excluded from the Act. The relevant one here is section 5(1)(a) which provides that the Act does not apply to premises that are commercial premises. “Commercial premises” are defined in section 2(1) to mean “premises that are not residential premises”. “Residential premises” are defined in the same section as “any premises used or intended for occupation by any person as a place of residence”.
In the situation where there is a dual use of the premises (as here), section 2(3) of the Act applies. This section provides that where premises are used for both commercial and residential purposes the premises are deemed to be residential premises unless it is proved that the premises were let principally for purposes other than residential.
Counsel for the applicant says that the landlord has failed to maintain the property from the time the lease was entered into. He says that the premises were impacted by the Auckland severe weather events which resulted in the property being uninhabitable.
Counsel for the applicant seeks to have a rent refund for the accommodation portion of the premises. He submits that it is only within the last month or so the landlord has started to inspect the property. Counsel says the tenant is paying the rent and the rates and has paid all the rates for the accommodation even though the tenant is not living there.
Counsel submits that there are certain features indicating a residential tenancy such as the recording of heat pumps on the equipment list of the lease agreement. There is also a diagram which highlights part of premises which suggests residential use.
There are two rates notices – one for commercial and one for residential. Counsel also confirmed that the landlord was living there at the time the lease was signed. The applicant provided a copy of the Deed of Lease dated 1 December 2015 which I have sighted and carefully considered. The Lease confirms the use of the premises to be that of business use: dairy/superette.
Counsel for the respondent submits that s5 RTA of the Act has no jurisdiction over commercial premises. He also refers to s2 of the Act. He further submits that one must look at the principal purpose for which the premises were let.
Counsel referred me to Main v Main [2007] NZCA 306 which held in that case that the residential use was incidental to the commercial use.
Counsel for the respondent says that it is illogical to argue that this is a residential tenancy. He says that this is a company and that companies do not require residential premises. They require commercial premises. He also says that it has never been used as residential premises. Counsel submits that one must look at the intention of the use. He further says that there could be certainty if they were dealing with a natural person. In this case they have a non-natural person, a company.
I am completely satisfied that the premises here were let principally for commercial purposes. I am also satisfied that the kitchen, lounge, room 1 and room 2 as recorded on the plan is incidental to the commercial space. The evidence provided, in my view, clearly confirms this. I also accept that the applicant leased the premises for the principal purpose of carrying on the business of a dairy.
I do not consider that the extended definition of premises applies here. The parties entered into a commercial deed of lease for the entire building, including the accommodation, and as mentioned above, it is clear that the purpose of the lease was for the applicant to carry on the business of a dairy and superette. In my view the use of the accommodation was merely incidental to the principal purpose of the building.
This situation is different from the situation in Kahi v Lucas HC Auckland HC81/96, 23 September 1996, a leading case on the meaning of “part of any premises” in the section 2 definition. In that case the landlord had a lease of commercial premises. He used the ground floor of the premises as a mechanical garage, and he sublet the top floor of the building to a tenant for residential purposes. The High Court held that, because premises could include part of any premises and the top floor was residential, the sublease came within the Act. However, as mentioned, here the applicant leased the entire building for commercial purposes. It is not a situation where there is a separate lease for the dairy’s accommodation only.
I am therefore satisfied that the premises were let principally for commercial purposes and the Tribunal has no jurisdiction to hear the claims.
The application is therefore struck out for want of jurisdiction.

Tenancy Tribunal case 5034450 — Healthy homes at 4 Potter Avenue, Wesley, Auckland 1041

At a glance

Tenancy Tribunal case 5034450 — Healthy homes at 4 Potter Avenue, Wesley, Auckland 1041

At a glance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear the claims?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction to hear the claims?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions