What was Tenancy Tribunal case 5100648 about?

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

How much money was awarded in case 5100648?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5100648?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5100648?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11675545-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5100648 about?

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

How much money was awarded in case 5100648?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5100648?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5100648?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11675545-Tenancy_Tribunal_Order.pdf.

116 Mountain Road, Epsom, Auckland 1023 Tenancy Tribunal Case 5100648 — Boarding House

Order

The application is dismissed for want of jurisdiction.

Reasons

The hearing was scheduled for 24 March 2025 to determine whether the Tribunal has jurisdiction.
The applicant attended the hearing. The respondent did not. Background
The property is a 3 storeyed house with 7 bedrooms. It is located in Epson in what is commonly referred to as the “double Grammar zone.” This means it is in zone for Auckland Boys Grammar School and Epsom Girls Grammar School.
The applicant gave evidence that they did not advertise the property for rent and were contacted by the respondent who is a former school friend from Vietnam. The applicant claims the respondent was living in New Lynn at the time, but wanted to send their children to one of the schools in the double Grammar zone. The respondent asked the applicant if they could move into the applicant’s house to live in the relevant zone. The applicant agreed as a favour to the respondent.
The applicant gave evidence that the respondent and their two children occupied part of the first floor of the property. The first floor comprises of a kitchen, dining/living area, bathroom, three bedrooms and laundry. The respondent’s family had exclusive use of two bedrooms and a bathroom on the first floor. They shared the dining/living area with the applicant, who used part of it for storage. They also shared the laundry with the applicant.
The applicant gave evidence that the kitchen on the first floor and entire rest of the house was occupied by themselves and their family.
The applicant gave evidence that they would sometimes invite the respondent’s family to share dinner with them. The outdoor area was shared between the parties and the respondent’s children sometimes used the pool.
The applicant gave evidence that the door to the first floor where the respondent spent most of their time was sometimes closed, but never locked. The applicant could easily enter the first floor and did.
There is no separate water or power meter at the property. The Watercare invoices were under the applicant’s name. The applicant gave evidence that they had the power invoices amended to be under the respondent’s name, because the respondent needed to show proof of living in the relevant zone to their children’s school. The respondent did not pay additional money to the applicant for power, water or internet. These outgoings were included in the rent, which was $700.00 per week.
The applicant gave evidence that they do not usually rent out any of the bedrooms in their house and that they only did so on this occasion as a favour to the respondent who was an old friend.
The parties signed a “Boarding House Tenancy Agreement.” The property does not meet the definition of a “boarding house” under section 66B Residential Tenancies Act 1986 (RTA). When asked by the Tribunal why they signed this type of agreement rather than a standard tenancy agreement, the applicant answered that it was because the respondent only rented out a couple of bedrooms, as opposed to the whole house. The agreement records the “address of tenancy” as “rent 2 rooms at level 1, share kitchen, share living room.” The applicant gave evidence that they considered the respondent to be more like a flatmate than a tenant.
The issue that I must determine is whether this was a flatmate or landlord and tenant relationship.

FLATMATE OR LANDLORD AND TENANT RELATIONSHIP?

Section 77(1) Residential Tenancies Act 1986 (RTA) 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 every tenancy for residential purposes except as specifically provided.
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. Residential premises means any premises used or intended for occupation by any person as a place of residence. Tenancy in relation to any residential premises means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. The respondent lived in a residential house and paid the applicant $700.00 per week. This sounds like a residential tenancy.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act.
Section 5(1)(n) states the RTA 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 member of the landlord’s or owner’s family.”
When determining whether the RTA is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, the District Court considered tenancy premises where the owner lived in one bedroom and rented the other eight bedrooms out to people. Everyone shared the use of the kitchen, lounge and bathroom, known as the “common areas.” The District Court held that the relevant question in cases where the landlord lives at the property they also rent out, is whether the principal use of the premises is as a place of residence by the landlord. “[39]... So the question to be asked is – Is the principal use of these premises as a place of residence by the landlord? [40] Put in this way, the clear answer, on the cases of both sides, is “no.” Mr Musson occupied one bedroom out of nine, and shared the common area equally with the other occupants. Far from Mr Musson’s use of the property being “principal”, it was commensurate with that of the other occupants. [41] I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bedsitting room to a tenant or sub-tenant while the principal use of the house remains accommodation for the landlord and the landlord’s family. On this reading, the exception could only apply to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.”
Applying Musson, I find that the applicant’s principal use of the premises was as a place of residence for himself and family for the following reasons: a. The applicant and his family occupied 5 out of 7 bedrooms in the house. Only 2 bedrooms in the house were rented out to the respondent and their family. This indicates that the main purpose of the premises was to provide a principal place of residence for the applicant and their family, rather than to generate an income. b. The applicant and their family were living in the property when the respondent moved in and continued living in the property while the respondent was there.
The situation in this case is quite different to Musson where the landlord only occupied one bedroom and rented out the remaining eight. I consider this case falls within the exception described in Musson of “small scale and limited letting”, while the principal use of the property remained as a residence for the applicant and their family.
I do not consider that the two bedrooms and bathroom exclusively occupied by the respondent in this case constituted its own “premise” for the purpose of section 5(1)(n). These are the only areas over which the respondent had exclusive use. The parties shared the use of the dining/living room and laundry on the first floor. The balcony, outdoor area and swimming pool were also shared between the parties. The door separating the first floor from the rest of the house was not locked and the applicant was able to easily access the first floor, which they did. The parties also shared dinners together on occasion.
The two bedrooms and bathroom exclusively occupied by the respondent were not “self-contained”, “fully functioning” or “independent” like the granny flat in Harding v Shellevis & Ors [2021] NZHC 1265. This is not a case where there are two separate and distinct household units. I am satisfied that the relevant premises in the present case is the whole property, which was used principally as a place of residence by the applicant and his family. FILING FEE & NAME SUPPRESSION
The applicant has not been wholly or substantially successful in their claim and therefore, I do not order the respondent to reimburse them the filing fee.
The applicant requested name suppression on their written application. The applicant has not been wholly or substantially successful in their claim and therefore, I am not required to grant them name suppression under section 95A(1) RTA.
The respondent made no application for name suppression in any of their communications with the Registry in the lead up to the hearing, which they did not attend.
I have a residual discretion to grant the applicant and respondent name suppression under section 95A(3) RTA. This section requires me to consider the interests of the parties and public. In Lewis v Wilson & Horton [2003] 3 NZLR 546 at paragraph 43, The Court of Appeal endorsed the approach taken in the High Court, which held: ...that the principle of open justice dictates that there should be no restriction on publication of information about a case ‘except in very special circumstances.’
I was not referred to any special circumstances why name suppression should be granted at the hearing and none are apparent from the facts of this case.
I have considered the interests of the parties and the public interest. I do not consider that this is an appropriate case to order name suppression.

Reasons

The hearing was scheduled for 24 March 2025 to determine whether the Tribunal has jurisdiction.

The applicant attended the hearing. The respondent did not. Background

The property is a 3 storeyed house with 7 bedrooms. It is located in Epson in what is commonly referred to as the “double Grammar zone.” This means it is in zone for Auckland Boys Grammar School and Epsom Girls Grammar School.

The applicant gave evidence that they did not advertise the property for rent and were contacted by the respondent who is a former school friend from Vietnam. The applicant claims the respondent was living in New Lynn at the time, but wanted to send their children to one of the schools in the double Grammar zone. The respondent asked the applicant if they could move into the applicant’s house to live in the relevant zone. The applicant agreed as a favour to the respondent.

The applicant gave evidence that the respondent and their two children occupied part of the first floor of the property. The first floor comprises of a kitchen, dining/living area, bathroom, three bedrooms and laundry. The respondent’s family had exclusive use of two bedrooms and a bathroom on the first floor. They shared the dining/living area with the applicant, who used part of it for storage. They also shared the laundry with the applicant.

The applicant gave evidence that the kitchen on the first floor and entire rest of the house was occupied by themselves and their family.

The applicant gave evidence that they would sometimes invite the respondent’s family to share dinner with them. The outdoor area was shared between the parties and the respondent’s children sometimes used the pool.

The applicant gave evidence that the door to the first floor where the respondent spent most of their time was sometimes closed, but never locked. The applicant could easily enter the first floor and did.

There is no separate water or power meter at the property. The Watercare invoices were under the applicant’s name. The applicant gave evidence that they had the power invoices amended to be under the respondent’s name, because the respondent needed to show proof of living in the relevant zone to their children’s school. The respondent did not pay additional money to the applicant for power, water or internet. These outgoings were included in the rent, which was $700.00 per week.

The applicant gave evidence that they do not usually rent out any of the bedrooms in their house and that they only did so on this occasion as a favour to the respondent who was an old friend.

The parties signed a “Boarding House Tenancy Agreement.” The property does not meet the definition of a “boarding house” under section 66B Residential Tenancies Act 1986 (RTA). When asked by the Tribunal why they signed this type of agreement rather than a standard tenancy agreement, the applicant answered that it was because the respondent only rented out a couple of bedrooms, as opposed to the whole house. The agreement records the “address of tenancy” as “rent 2 rooms at level 1, share kitchen, share living room.” The applicant gave evidence that they considered the respondent to be more like a flatmate than a tenant.

The issue that I must determine is whether this was a flatmate or landlord and tenant relationship.

FLATMATE OR LANDLORD AND TENANT RELATIONSHIP?

Section 77(1) Residential Tenancies Act 1986 (RTA) 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 every tenancy for residential purposes except as specifically provided.

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. Residential premises means any premises used or intended for occupation by any person as a place of residence. Tenancy in relation to any residential premises means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. The respondent lived in a residential house and paid the applicant $700.00 per week. This sounds like a residential tenancy.

Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act.

Section 5(1)(n) states the RTA 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 member of the landlord’s or owner’s family.”

When determining whether the RTA is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.

In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, the District Court considered tenancy premises where the owner lived in one bedroom and rented the other eight bedrooms out to people. Everyone shared the use of the kitchen, lounge and bathroom, known as the “common areas.” The District Court held that the relevant question in cases where the landlord lives at the property they also rent out, is whether the principal use of the premises is as a place of residence by the landlord. “[39]... So the question to be asked is – Is the principal use of these premises as a place of residence by the landlord? [40] Put in this way, the clear answer, on the cases of both sides, is “no.” Mr Musson occupied one bedroom out of nine, and shared the common area equally with the other occupants. Far from Mr Musson’s use of the property being “principal”, it was commensurate with that of the other occupants. [41] I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bedsitting room to a tenant or sub-tenant while the principal use of the house remains accommodation for the landlord and the landlord’s family. On this reading, the exception could only apply to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.”

Applying Musson, I find that the applicant’s principal use of the premises was as a place of residence for himself and family for the following reasons: a. The applicant and his family occupied 5 out of 7 bedrooms in the house. Only 2 bedrooms in the house were rented out to the respondent and their family. This indicates that the main purpose of the premises was to provide a principal place of residence for the applicant and their family, rather than to generate an income. b. The applicant and their family were living in the property when the respondent moved in and continued living in the property while the respondent was there.

The situation in this case is quite different to Musson where the landlord only occupied one bedroom and rented out the remaining eight. I consider this case falls within the exception described in Musson of “small scale and limited letting”, while the principal use of the property remained as a residence for the applicant and their family.

I do not consider that the two bedrooms and bathroom exclusively occupied by the respondent in this case constituted its own “premise” for the purpose of section 5(1)(n). These are the only areas over which the respondent had exclusive use. The parties shared the use of the dining/living room and laundry on the first floor. The balcony, outdoor area and swimming pool were also shared between the parties. The door separating the first floor from the rest of the house was not locked and the applicant was able to easily access the first floor, which they did. The parties also shared dinners together on occasion.

The two bedrooms and bathroom exclusively occupied by the respondent were not “self-contained”, “fully functioning” or “independent” like the granny flat in Harding v Shellevis & Ors [2021] NZHC 1265. This is not a case where there are two separate and distinct household units. I am satisfied that the relevant premises in the present case is the whole property, which was used principally as a place of residence by the applicant and his family. FILING FEE & NAME SUPPRESSION

The applicant has not been wholly or substantially successful in their claim and therefore, I do not order the respondent to reimburse them the filing fee.

The applicant requested name suppression on their written application. The applicant has not been wholly or substantially successful in their claim and therefore, I am not required to grant them name suppression under section 95A(1) RTA.

The respondent made no application for name suppression in any of their communications with the Registry in the lead up to the hearing, which they did not attend.

I have a residual discretion to grant the applicant and respondent name suppression under section 95A(3) RTA. This section requires me to consider the interests of the parties and public. In Lewis v Wilson & Horton [2003] 3 NZLR 546 at paragraph 43, The Court of Appeal endorsed the approach taken in the High Court, which held: ...that the principle of open justice dictates that there should be no restriction on publication of information about a case ‘except in very special circumstances.’

I was not referred to any special circumstances why name suppression should be granted at the hearing and none are apparent from the facts of this case.

I have considered the interests of the parties and the public interest. I do not consider that this is an appropriate case to order name suppression.

Tenancy Tribunal case 5100648 — Boarding House at 116 Mountain Road, Epsom, Auckland 1023

At a glance

Claims & awards

Tenancy Tribunal case 5100648 — Boarding House at 116 Mountain Road, Epsom, Auckland 1023

At a glance

Claims & awards

Order

Reasons

FLATMATE OR LANDLORD AND TENANT RELATIONSHIP?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.

Order

Reasons

FLATMATE OR LANDLORD AND TENANT RELATIONSHIP?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.