What was Tenancy Tribunal case 5126555 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 5126555?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5126555?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5126555?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11749430-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5126555 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 5126555?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5126555?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5126555?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11749430-Tribunal_Order_Redacted.pdf.

10 London Road, Korokoro, Lower Hutt 5012, upper level Tenancy Tribunal Case 5126555 — 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 Tenancy Tribunal has jurisdiction to hear the tenant’s application.
The tenant’s application will be set down for hearing.
A further 360 minutes (9.30am – 4.30pm) should be allowed for the next hearing of this matter, scheduled before me at this court on the next available date.
If either party intends to produce any additional documents at the next hearing, they must email the Tribunal at least three days before the next hearing and cc email the other party at the same time.
Any additional documents should be sent to this email address: huttvalleytt@justice.govt.nz

Reasons

Both parties attended the hearing.
This is a disagreement between the owner of a five bedroom house and a “flatmate” who lived there for around three months. The flatmate 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 flatmate lived in a residential dwelling and paid rent. He had the exclusive use of a bedroom. That sounds like a tenancy.
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 being used as 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, an ensuite and a second bedroom he used for guests. The flatmate had the exclusive use of a bedroom, which had a lock on the door. Living there at the same time were a couple who had the exclusive use of a bedroom and a Kiwi who had the exclusive use of a bedroom. The four flatmates had the shared the use of the two bathrooms, lounge, and kitchen.
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.
The owner submitted that the advertisement for the room made it clear he was looking for a flatmate. A one page flatmate agreement was drawn up by the owner. Relevant parts of the agreement state: Details of your residency as a flatmate of mine, living with me at my principal place of residence 10 (upper) London Road ... Normal flatting rules apply in our house. The golden rule is to leave kitchens, bathrooms and the living arears as you found them, CLEAN & TIDY... Your current flatmates living upstairs are currently me, [the Kiwi] and [the couple] ...
The owner submitted that he bought the house in 2004 and has used it as his family home ever since. The utility bills are in his name and the flatmates pay a weekly amount towards power, gas, phone, rubbish collection and the internet. He is listed on the electoral roll as living at that address. His family often comes to see him at the house. The owner does the maintenance and keeps it clean because he is in charge of the house. He said he would hate to live alone and he has the flatmates for company. He also said it is a very large house and he needs help with the bills and outgoings.
The owner said it was relevant that in 2024 he spent more days in New Zealand than in Australia, even though he spent three more days in Australia during the three months the flatmate was living there.
The owner said he is not running a boarding house because he does not have six or more people living there, and I agree with that.
In response to my questioning as to whether the house was being used as a family home or a business the owner said it was not being run commercially. He said the house was a place to enjoy, not make money. He said the Musson decision was in fact about the same house and the District Court decision was subsequently overturned by the High Court. As far as I am aware, the 2006 Musson decision has not been overturned.
I am not persuaded by the owner’s submissions. It seems most likely to me the premises were not being used principally as the owner’s residence. This is because: • The owner had the exclusive use of two bedrooms and an ensuite and shared the use of the rest of the house. The tenants had the exclusive use of three bedrooms and shared use of the rest of the house. It seems most likely to me the owner’s use of the house was commensurate with the tenants. • Whether or not the house is the owner’s main residence is not the correct questions here, because even when the owner is at the house his use is commensurate with the flatmates’ use. • The use of the word “flatmate” in the advertisement and the flatmate agreement is not conclusive because the Tribunal must consider the substance of the agreement between the parties, rather than the labels the owner has applied. • The owner paying the utility bills is not significant because there are residential tenancies where power and water are included in the rent. • The owner’s family visiting is not significant because the flatmates could also have family visit, making this a commensurate use of the house. • The fact the house is fully furnished is not significant because there are residential tenancies that come fully furnished.
I find the exclusion at 5(1)(n) RTA does not apply to this living arrangement. This means there was a residential tenancy, the applicant was a tenant, and the owner was the landlord. Suppression
The tenant’s application for suppression is allowed because the tenant is the most successful party. The landlord’s name is published because there is public interest when landlords take steps to avoid the application of the RTA. See section 95A RTA.

What happens next?

The parties will be notified in writing by Tenancy Services of the date and time of the next hearing.

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 Tenancy Tribunal has jurisdiction to hear the tenant’s application.
The tenant’s application will be set down for hearing.
A further 360 minutes (9.30am – 4.30pm) should be allowed for the next hearing of this matter, scheduled before me at this court on the next available date.
If either party intends to produce any additional documents at the next hearing, they must email the Tribunal at least three days before the next hearing and cc email the other party at the same time.
Any additional documents should be sent to this email address: huttvalleytt@justice.govt.nz

Reasons

Both parties attended the hearing.
This is a disagreement between the owner of a five bedroom house and a “flatmate” who lived there for around three months. The flatmate 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 flatmate lived in a residential dwelling and paid rent. He had the exclusive use of a bedroom. That sounds like a tenancy.
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 being used as 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?

Applying the Musson decision to this living arrangement, the owner had the exclusive the main bedroom, an ensuite and a second bedroom he used for guests. The flatmate had the exclusive use of a bedroom, which had a lock on the door. Living there at the same time were a couple who had the exclusive use of a bedroom and a Kiwi who had the exclusive use of a bedroom. The four flatmates had the shared the use of the two bathrooms, lounge, and kitchen.
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.
The owner submitted that the advertisement for the room made it clear he was looking for a flatmate. A one page flatmate agreement was drawn up by the owner. Relevant parts of the agreement state: Details of your residency as a flatmate of mine, living with me at my principal place of residence 10 (upper) London Road ... Normal flatting rules apply in our house. The golden rule is to leave kitchens, bathrooms and the living arears as you found them, CLEAN & TIDY... Your current flatmates living upstairs are currently me, [the Kiwi] and [the couple] ...
The owner submitted that he bought the house in 2004 and has used it as his family home ever since. The utility bills are in his name and the flatmates pay a weekly amount towards power, gas, phone, rubbish collection and the internet. He is listed on the electoral roll as living at that address. His family often comes to see him at the house. The owner does the maintenance and keeps it clean because he is in charge of the house. He said he would hate to live alone and he has the flatmates for company. He also said it is a very large house and he needs help with the bills and outgoings.
The owner said it was relevant that in 2024 he spent more days in New Zealand than in Australia, even though he spent three more days in Australia during the three months the flatmate was living there.
The owner said he is not running a boarding house because he does not have six or more people living there, and I agree with that.
In response to my questioning as to whether the house was being used as a family home or a business the owner said it was not being run commercially. He said the house was a place to enjoy, not make money. He said the Musson decision was in fact about the same house and the District Court decision was subsequently overturned by the High Court. As far as I am aware, the 2006 Musson decision has not been overturned.
I am not persuaded by the owner’s submissions. It seems most likely to me the premises were not being used principally as the owner’s residence. This is because: • The owner had the exclusive use of two bedrooms and an ensuite and shared the use of the rest of the house. The tenants had the exclusive use of three bedrooms and shared use of the rest of the house. It seems most likely to me the owner’s use of the house was commensurate with the tenants. • Whether or not the house is the owner’s main residence is not the correct questions here, because even when the owner is at the house his use is commensurate with the flatmates’ use. • The use of the word “flatmate” in the advertisement and the flatmate agreement is not conclusive because the Tribunal must consider the substance of the agreement between the parties, rather than the labels the owner has applied. • The owner paying the utility bills is not significant because there are residential tenancies where power and water are included in the rent. • The owner’s family visiting is not significant because the flatmates could also have family visit, making this a commensurate use of the house. • The fact the house is fully furnished is not significant because there are residential tenancies that come fully furnished.
I find the exclusion at 5(1)(n) RTA does not apply to this living arrangement. This means there was a residential tenancy, the applicant was a tenant, and the owner was the landlord. Suppression
The tenant’s application for suppression is allowed because the tenant is the most successful party. The landlord’s name is published because there is public interest when landlords take steps to avoid the application of the RTA. See section 95A RTA.

What happens next?

The parties will be notified in writing by Tenancy Services of the date and time of the next hearing.

Tenancy Tribunal case 5126555 — Boarding House at 10 London Road, Korokoro, Lower Hutt 5012, upper level

At a glance

Tenancy Tribunal case 5126555 — Boarding House at 10 London Road, Korokoro, Lower Hutt 5012, upper level

At a glance

Claims & awards

Order

Reasons

Does the RTA apply to this living situation?

Is the principal use of these premises as a place of residence by the landlord?

What happens next?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Does the RTA apply to this living situation?

Is the principal use of these premises as a place of residence by the landlord?

What happens next?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions