What was Tenancy Tribunal case 5120969 about?

The tribunal order states: The Tribunal orders suppression of the names and identifying details.

How much money was awarded in case 5120969?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5120969?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5120969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11660959-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5120969 about?

The tribunal order states: The Tribunal orders suppression of the names and identifying details.

How much money was awarded in case 5120969?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5120969?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5120969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11660959-Tribunal_Order_Redacted.pdf.

12A Kidson Terrace, Cashmere, Christchurch 8022 Tenancy Tribunal Case 5120969 — Boarding House

Order

The Tribunal orders suppression of the names and identifying details.
The application is dismissed because there is no jurisdiction.

Reasons

Both parties attended the hearing.
This is a disagreement between the owner of a four bedroom house and a boarder/lodger who lived there for around two and a half years. The boarder wants to bring a claim in the Tenancy Tribunal for breaches against the Residential Tenancies Act 1986 (RTA). The owner’s position is that the RTA does not apply because he lives in the house.

Does the RTA apply to this living situation?

The preliminary issue is whether the Tribunal can hear the claim. Section 77(1) 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 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. 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.
In this case the boarder lived in a residential dwelling and paid rent. He had the exclusive use of a bedroom. That sounds like a tenancy.
Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply. In this case that is the owner of the house.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 5(1)(n) provides that the RTA is excluded: 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:
The exclusion in 5(1)(n) was considered by the District Court in Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36. The Judge in that decision considered tenancy premises where the owner lived in one bedroom and the other eight bedrooms were rented out to other people. Everyone shared the use of the kitchen, lounge, bathroom etc – the common areas. The focus in Musson was on the principal residence point. The issue was not whether this was the landlord’s main residence, but whether this house was being used mainly as a home or a business. The Court held that the exclusion at section 5(1)(n) of the RTA did not apply because the premises were not used principally as the landlord’s residence.
The Court in Musson found the relevant question in cases like this is whether the principal use of these premises is as a place of residence by the landlord? The Judge said – [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 as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only 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 the Musson decision to this living arrangement, the owner had the exclusive the main bedroom and a second bedroom he used for guests or for storage. The boarder had the exclusive use of a slightly smaller bedroom. A second boarder had the use of a bedroom. The three of them shared the use of the two bathrooms, lounge, dining, kitchen, laundry, garden and carport. I note that the guest room was utilised by a boarder when the owner was away, but it seems most likely to me that was an exception and done without the owner’s consent. The owner has other houses and is sometimes away from the house for months at a time. The main bedroom and the guest room were usually left locked while the owner was away.
I am more persuaded by the owner’s submission. It seems most likely to me the premises were being used principally as the owner’s residence. This is because the owner retained control over a larger share of the house, even when he was away. This means the exclusion at 5(1)(n) RTA applies to this living arrangement.
The boarder’s claim is dismissed because I do not have the jurisdiction to hear the claim.
The names will not be published because there has been no breach of the RTA and any interest is in the law. See section 95A RTA.

Order

The Tribunal orders suppression of the names and identifying details.
The application is dismissed because there is no jurisdiction.

Reasons

Both parties attended the hearing.
This is a disagreement between the owner of a four bedroom house and a boarder/lodger who lived there for around two and a half years. The boarder wants to bring a claim in the Tenancy Tribunal for breaches against the Residential Tenancies Act 1986 (RTA). The owner’s position is that the RTA does not apply because he lives in the house.

Does the RTA apply to this living situation?

The preliminary issue is whether the Tribunal can hear the claim. Section 77(1) 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 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. 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.
In this case the boarder lived in a residential dwelling and paid rent. He had the exclusive use of a bedroom. That sounds like a tenancy.
Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, they have the burden of proving the Act does not apply. In this case that is the owner of the house.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 5(1)(n) provides that the RTA is excluded: 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:
The exclusion in 5(1)(n) was considered by the District Court in Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36. The Judge in that decision considered tenancy premises where the owner lived in one bedroom and the other eight bedrooms were rented out to other people. Everyone shared the use of the kitchen, lounge, bathroom etc – the common areas. The focus in Musson was on the principal residence point. The issue was not whether this was the landlord’s main residence, but whether this house was being used mainly as a home or a business. The Court held that the exclusion at section 5(1)(n) of the RTA did not apply because the premises were not used principally as the landlord’s residence.
The Court in Musson found the relevant question in cases like this is whether the principal use of these premises is as a place of residence by the landlord? The Judge said – [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 as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only 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 the Musson decision to this living arrangement, the owner had the exclusive the main bedroom and a second bedroom he used for guests or for storage. The boarder had the exclusive use of a slightly smaller bedroom. A second boarder had the use of a bedroom. The three of them shared the use of the two bathrooms, lounge, dining, kitchen, laundry, garden and carport. I note that the guest room was utilised by a boarder when the owner was away, but it seems most likely to me that was an exception and done without the owner’s consent. The owner has other houses and is sometimes away from the house for months at a time. The main bedroom and the guest room were usually left locked while the owner was away.
I am more persuaded by the owner’s submission. It seems most likely to me the premises were being used principally as the owner’s residence. This is because the owner retained control over a larger share of the house, even when he was away. This means the exclusion at 5(1)(n) RTA applies to this living arrangement.
The boarder’s claim is dismissed because I do not have the jurisdiction to hear the claim.
The names will not be published because there has been no breach of the RTA and any interest is in the law. See section 95A RTA.

Tenancy Tribunal case 5120969 — Boarding House at 12A Kidson Terrace, Cashmere, Christchurch 8022

At a glance

Tenancy Tribunal case 5120969 — Boarding House at 12A Kidson Terrace, Cashmere, Christchurch 8022

At a glance

Claims & awards

Order

Reasons

Does the RTA apply to this living situation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Does the RTA apply to this living situation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions