What was Tenancy Tribunal case 5123597 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 5123597?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5123597?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5123597?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11663105-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5123597 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 5123597?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5123597?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5123597?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11663105-Tribunal_Order_Redacted.pdf.

1658 Oropi Road, Oropi, RD 3, Oropi 3173 Tenancy Tribunal Case 5123597 — Boarding House

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The Tribunal has jurisdiction to hear this application.
The tenant’s claims are dismissed.

Reasons

Both parties attended the hearing.
This is a disagreement between the owner of a residential house on a farm and a tenant/boarder who lived there for around six months. The tenant wants to bring a claim in the Tenancy Tribunal for breaches against the Residential Tenancies Act 1986 (RTA) and for refund of the bond. The owner’s position is that the RTA does not apply because she 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 tenant 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 the owner of the house has the burden of proof.
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) 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 a bedroom. The tenant had the exclusive use of a bedroom. During his stay in the house he said there were four or five other tenants/boarders living in the house. The owner said there were three flatmates at the time. One of the bedrooms used by the flatmates had an ensuite. There is also a bunk room sometimes used by travellers and people working on farms. The owner and the others staying in the house shared the use of the living areas, kitchen, bathrooms, and laundry.
I am more persuaded by the tenant’s submission. It seems most likely to me the premises were being used principally as a business. This is because a larger share of the house was being used, or intended to be used, to collect rent. I find the exclusion at 5(1)(n) RTA does not apply to this living arrangement.
This means I have the jurisdiction to decide the tenant’s claims.
I note there are sufficient beds for this to be run as a boarding house but there was insufficient evidence for me to decide the boarding house issue without adjourning. Either way the RTA applies. The owner/landlord is advised to seek legal advice about how best to manage this residential tenancy. The tenant’s claims.
The tenant has claimed the refund of two weeks he paid as a bond and orders about a box of belongings he left behind in error. He said he answered an advertisement, agreed to move in, and paid a bond to secure the room. The owner/landlord said she agreed the tenant could have the room, withdrew the advertisement and started charging rent straight away. There is no dispute about the amount of money paid.
This is the tenant’s claim to prove. He has not provided me with any of the texts exchanged at the start of the tenancy. He moved belongings into the room a week after the agreement to rent and started living at the house the week after that. It is not unusual for tenants to pay rent for the use of a room, even if they are not living at the tenancy premises. I am more persuaded by the owner/landlord’s submission that she made it clear the rent was due once she took the advertisement off trade me.
The claim for the box of belongings is dismissed. It seems most likely from the tenant’s description of the items in the box – some sandpaper and stain and woodworking materials – that these were of no real value to anyone other than the tenant. There is no obligation on a landlord to store belongings of no value. See section 62 and 62A RTA.
The tenant’s claims are dismissed. Suppression
The tenant’s application for suppression is allowed because he has successfully proved this was a residential tenancy. The owner/landlord’s name will be published because there is public interest in the decision about jurisdiction.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The Tribunal has jurisdiction to hear this application.
The tenant’s claims are dismissed.

Reasons

Both parties attended the hearing.
This is a disagreement between the owner of a residential house on a farm and a tenant/boarder who lived there for around six months. The tenant wants to bring a claim in the Tenancy Tribunal for breaches against the Residential Tenancies Act 1986 (RTA) and for refund of the bond. The owner’s position is that the RTA does not apply because she 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 tenant 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 the owner of the house has the burden of proof.
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) 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 a bedroom. The tenant had the exclusive use of a bedroom. During his stay in the house he said there were four or five other tenants/boarders living in the house. The owner said there were three flatmates at the time. One of the bedrooms used by the flatmates had an ensuite. There is also a bunk room sometimes used by travellers and people working on farms. The owner and the others staying in the house shared the use of the living areas, kitchen, bathrooms, and laundry.
I am more persuaded by the tenant’s submission. It seems most likely to me the premises were being used principally as a business. This is because a larger share of the house was being used, or intended to be used, to collect rent. I find the exclusion at 5(1)(n) RTA does not apply to this living arrangement.
This means I have the jurisdiction to decide the tenant’s claims.
I note there are sufficient beds for this to be run as a boarding house but there was insufficient evidence for me to decide the boarding house issue without adjourning. Either way the RTA applies. The owner/landlord is advised to seek legal advice about how best to manage this residential tenancy. The tenant’s claims.
The tenant has claimed the refund of two weeks he paid as a bond and orders about a box of belongings he left behind in error. He said he answered an advertisement, agreed to move in, and paid a bond to secure the room. The owner/landlord said she agreed the tenant could have the room, withdrew the advertisement and started charging rent straight away. There is no dispute about the amount of money paid.
This is the tenant’s claim to prove. He has not provided me with any of the texts exchanged at the start of the tenancy. He moved belongings into the room a week after the agreement to rent and started living at the house the week after that. It is not unusual for tenants to pay rent for the use of a room, even if they are not living at the tenancy premises. I am more persuaded by the owner/landlord’s submission that she made it clear the rent was due once she took the advertisement off trade me.
The claim for the box of belongings is dismissed. It seems most likely from the tenant’s description of the items in the box – some sandpaper and stain and woodworking materials – that these were of no real value to anyone other than the tenant. There is no obligation on a landlord to store belongings of no value. See section 62 and 62A RTA.
The tenant’s claims are dismissed. Suppression
The tenant’s application for suppression is allowed because he has successfully proved this was a residential tenancy. The owner/landlord’s name will be published because there is public interest in the decision about jurisdiction.

Tenancy Tribunal case 5123597 — Boarding House at 1658 Oropi Road, Oropi, RD 3, Oropi 3173

At a glance

Tenancy Tribunal case 5123597 — Boarding House at 1658 Oropi Road, Oropi, RD 3, Oropi 3173

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