What was Tenancy Tribunal case 5070823 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 5070823?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5070823?

The primary dispute was Rent arrears. Related themes: Boarding House.

Where can I read the official tribunal order for case 5070823?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11359935-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5070823 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 5070823?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5070823?

The primary dispute was Rent arrears. Related themes: Boarding House.

Where can I read the official tribunal order for case 5070823?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11359935-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5070823 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant/Landlord names and identifying details.
The tenancy is not a residential tenancy under the Residential Tenancies Act 1986.
The Tribunal has no jurisdiction to hear the landlord’s application.
The application is dismissed.

Reasons

Both parties attended the hearing.
The landlord Family Trust was represented by one of the trustees, [Trustee 1].
The Trust is the owner of the premises.
On or about 16 May 2019, [Trustee 1] and his then de facto partner, [The respondent/s] entered into a tenancy agreement to rent the premises from the trust.
[Trustee 1] and [The respondent/s] separated in 2024.
The landlord trust seeks rent arrears from [The respondent/s].
Prior to considering the landlord’s claim, the Tribunal is required to review the issue of jurisdiction. The Tribunal must have jurisdiction to hear a matter before being in a position where it can consider an application.
The Residential Tenancies Act 1986 (“RTA”) gives the Tribunal jurisdiction to consider disputes between landlords and tenants. The RTA applies to every tenancy for residential purposes except those excluded by s.5 RTA. Of particular relevance in this matter, is the exclusion contained in s.5(1)(n) RTA. That section provides that the Act will not apply ; “(n) where the premises not being a boarding house, continues 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.”
The premises are owned by [Trustee 1] and [Trustee 2] as trustees of [The landlord trust].
The premises are not a boarding house and that part of the exclusion does not require consideration.
Were the premises used principally as a place of residence by the landlord, owner, or member of the landlord’s or owner’s family?
The issue of whether a family trust can have family members for the purposes of s.5(1)(n) RTA was considered by the High Court in Mexted v Mexted, Gray Rasmussen [2021] NZTT Hamilton , 4300218, 4297500. The High Court held; “...a trust is not a separate legal entity, the assets of a trust are owned by the trustees, and a trustee can have family members. The effect of these principles is that the exclusion contained in s 5(1)(n) of the Act is engaged when a trustee leases trust property to a family member.”
The reality of this tenancy is that the landlord trust has rented the premises to [Trustee 1] and [The respondent/s]. [Trustee 1], as trustee of the Trust, is an owner of the premises. At all times relevant to this enquiry, [Trustee 1] and [The respondent/s] were in a de facto relationship (see the Deed of Acknowledging Absence of Interest in Trust dated 8 May 2019 (“the Deed”). The Deed records that the parties were living in a de facto relationship as defined in the Property (Relationships) Act 1976). [The respondent/s] received independent advice on the terms of the Deed.
Section 2 RTA defines “member of the landlord’s or owner’s family” to include any person who is or has been related to the landlord or owner by way of a de facto relationship. I consider that [The respondent/s] was a “family member” as that term is defined in the RTA.
Section 10 RTA puts the onus of proof on the party relying on the statutory exclusion. So, it is for the tenant to prove that s.5(1)(n) RTA excludes this tenancy.
In DC Lothbury Management Ltd v Ryan and MacDonald [2021] NZDC 4902 the Court held that a trustee (by virtue of being a trustee) is an owner of residential premises when the property is held in trust.
The Tribunal has previously found that a trust, unlike a company, can have family members - see Mexted v Mexted, Gray and Rasmussen (supra).The High Court said in that case that the purpose of section 5(1)(n) RTA was to exclude arrangements that are coloured by their inherently familial genesis. There are public policy grounds to avoid conferring all the protections available to tenants under the RTA on those who have found accommodation on terms which are more favourable than those they would have otherwise received from a stranger by virtue of a family relationship.
The undisputed factual background makes it clear that; • The premises were owned by [Trustee 1], in his capacity as a trustee of the trust. • The premises were used principally as a place of residence by [Trustee 1] and [The respondent/s]. • [Trustee 1] and [The respondent/s] were respectively an owner and a family member of an owner.
Parties who are adversely affected by s.5(1)(n) RTA may sign residential tenancy agreements recording ,amongst other things, their intention to contract back into the Act in accordance with s.8 RTA. The parties have not done so.
The tenant has proven that the s.5(1)(n) RTA exclusion does apply. The tenancy does not fall within the provisions of the RTA. The Tribunal has no jurisdiction.
The proceedings are dismissed as the Tribunal does not have jurisdiction to consider the claim. The parties may pursue the claim in a different jurisdiction.
Both parties have applied for name suppression. The tenant has been successful in the hearing and suppression of the tenant name and details is ordered. The landlord would not normally have been entitled to an order for name suppression. I have suppressed the landlord’s name as well as publication would likely lead to the tenant’s name being identified.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant/Landlord names and identifying details.
The tenancy is not a residential tenancy under the Residential Tenancies Act 1986.
The Tribunal has no jurisdiction to hear the landlord’s application.
The application is dismissed.

Reasons

Both parties attended the hearing.
The landlord Family Trust was represented by one of the trustees, [Trustee 1].
The Trust is the owner of the premises.
On or about 16 May 2019, [Trustee 1] and his then de facto partner, [The respondent/s] entered into a tenancy agreement to rent the premises from the trust.
[Trustee 1] and [The respondent/s] separated in 2024.
The landlord trust seeks rent arrears from [The respondent/s].
Prior to considering the landlord’s claim, the Tribunal is required to review the issue of jurisdiction. The Tribunal must have jurisdiction to hear a matter before being in a position where it can consider an application.
The Residential Tenancies Act 1986 (“RTA”) gives the Tribunal jurisdiction to consider disputes between landlords and tenants. The RTA applies to every tenancy for residential purposes except those excluded by s.5 RTA. Of particular relevance in this matter, is the exclusion contained in s.5(1)(n) RTA. That section provides that the Act will not apply ; “(n) where the premises not being a boarding house, continues 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.”
The premises are owned by [Trustee 1] and [Trustee 2] as trustees of [The landlord trust].
The premises are not a boarding house and that part of the exclusion does not require consideration.
Were the premises used principally as a place of residence by the landlord, owner, or member of the landlord’s or owner’s family?
The issue of whether a family trust can have family members for the purposes of s.5(1)(n) RTA was considered by the High Court in Mexted v Mexted, Gray Rasmussen [2021] NZTT Hamilton , 4300218, 4297500. The High Court held; “...a trust is not a separate legal entity, the assets of a trust are owned by the trustees, and a trustee can have family members. The effect of these principles is that the exclusion contained in s 5(1)(n) of the Act is engaged when a trustee leases trust property to a family member.”
The reality of this tenancy is that the landlord trust has rented the premises to [Trustee 1] and [The respondent/s]. [Trustee 1], as trustee of the Trust, is an owner of the premises. At all times relevant to this enquiry, [Trustee 1] and [The respondent/s] were in a de facto relationship (see the Deed of Acknowledging Absence of Interest in Trust dated 8 May 2019 (“the Deed”). The Deed records that the parties were living in a de facto relationship as defined in the Property (Relationships) Act 1976). [The respondent/s] received independent advice on the terms of the Deed.
Section 2 RTA defines “member of the landlord’s or owner’s family” to include any person who is or has been related to the landlord or owner by way of a de facto relationship. I consider that [The respondent/s] was a “family member” as that term is defined in the RTA.
Section 10 RTA puts the onus of proof on the party relying on the statutory exclusion. So, it is for the tenant to prove that s.5(1)(n) RTA excludes this tenancy.
In DC Lothbury Management Ltd v Ryan and MacDonald [2021] NZDC 4902 the Court held that a trustee (by virtue of being a trustee) is an owner of residential premises when the property is held in trust.
The Tribunal has previously found that a trust, unlike a company, can have family members - see Mexted v Mexted, Gray and Rasmussen (supra).The High Court said in that case that the purpose of section 5(1)(n) RTA was to exclude arrangements that are coloured by their inherently familial genesis. There are public policy grounds to avoid conferring all the protections available to tenants under the RTA on those who have found accommodation on terms which are more favourable than those they would have otherwise received from a stranger by virtue of a family relationship.
The undisputed factual background makes it clear that; • The premises were owned by [Trustee 1], in his capacity as a trustee of the trust. • The premises were used principally as a place of residence by [Trustee 1] and [The respondent/s]. • [Trustee 1] and [The respondent/s] were respectively an owner and a family member of an owner.
Parties who are adversely affected by s.5(1)(n) RTA may sign residential tenancy agreements recording ,amongst other things, their intention to contract back into the Act in accordance with s.8 RTA. The parties have not done so.
The tenant has proven that the s.5(1)(n) RTA exclusion does apply. The tenancy does not fall within the provisions of the RTA. The Tribunal has no jurisdiction.
The proceedings are dismissed as the Tribunal does not have jurisdiction to consider the claim. The parties may pursue the claim in a different jurisdiction.
Both parties have applied for name suppression. The tenant has been successful in the hearing and suppression of the tenant name and details is ordered. The landlord would not normally have been entitled to an order for name suppression. I have suppressed the landlord’s name as well as publication would likely lead to the tenant’s name being identified.

Tenancy Tribunal case 5070823 — Rent arrears

At a glance

Tenancy Tribunal case 5070823 — Rent arrears

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