Published tribunal order
Tenancy Tribunal case 5182191 — Harassment at 7 Factory Road, Takaka, Takaka 7110
Decided 9 Apr 2025 · Published 9 Apr 2025 · Application 5182191
- Harassment
- Boarding House
Party names are redacted in the official published order.
Order
- Under section 78(1)(a) of the Residential Tenancies Act 1986, it is declared that the premises at 7 Factory Road, Takaka, 7110 are declared to be residential premises, subject to a tenancy agreement between the parties.
- An application for suppression has been made in this case, and the Tribunal orders suppression of the applicants’ names and identifying details.
- Manfried Ortner is ordered to pay the sum of $27.00 to [the applicants] immediately.
- If either party wishes to pursue the other claims against the other, they must file by 5pm Monday 14 April: a. a statement confirming each of the claims they are making and exactly what they want the Tribunal to order. b. all evidence in support.
- The statement and evidence referred to in paragraph 4 must be emailed to remote.tenancy@justice.govt.nz and emailed to the other party.
- The parties will then be advised of a time and place for a face-to-face hearing.
- If either party does not comply with direction 4 above, their application will not be set down for hearing and will be dismissed.
Reasons
- A telephone case conference was set down for 2pm on Thursday 27 March 2025. Both parties attended.
- Each party has filed an application in the Tribunal.
- Because the applications require a determination as to whether the parties had a residential tenancy under the Residential Tenancies Act 1986, I have not used the terms tenant and landlord. The application of [the tenants] was filed first and so for the purposes of this decision, I have referred to them as the applicants and Mr Ortner as the respondent.
- The applicants are seeking a declaration as to the nature of the agreement between them. The applicants say that the arrangement was a residential tenancy in which they were tenants and the respondent was a landlord. It is therefore covered by the Residential Tenancies Act 1986 (the Act). In an email dated 27 March 2025, in response to the respondent’s application, the applicants set out a number of other claims under the Act.
- This decision covers the question of jurisdiction only.
- The respondent says that they were flatmates. He has brought a cross application for “termination of the tenancy” saying that notice had been given but the applicants remained, and he wants possession.
- The applicants have secured alternative accommodation and are moving out on the Sunday of Easter weekend, which is 20 April 2025.
- Because it was very unlikely that this matter could be allocated a hearing before then, I suggested that it would be appropriate to see if the parties could reach agreement, in which case I could issue an order by consent. That was not achievable, and so I used the 90 minutes allocated to hear evidence.
- The respondent had already filed a statement. During the hearing the applicants read from statements prepared in response to his statement. These were also emailed to the Tribunal during the hearing.
- Both parties had filed copies of digital communications between them about the living arrangements.
- After the hearing the respondent forwarded a copy of an earlier message on which one of the applicants had added an angry face emoji. The copy of the message was already before the Tribunal. Whether the applicant had added an emoji at any time is not relevant to the question of jurisdiction. Matters not in dispute
- There is no dispute that the respondent owns the land at 7 Factory Road. There are three buildings that are being used as dwellings: a house which is occupied by other people, a container/tiny house, occupied by another person, and the building which is the subject of the agreement between these parties. It is described as a tiny house/sleepout. In this decision, it has been referred to as a sleepout. There is a lounge/kitchenette with a mezzanine floor on which there is a bed. There is a second room which is a bathroom which also has an outside door.
- At the end of November 2024, the applicants moved into the sleepout. There was no written agreement.
- The respondent had work out of town and came back to the premises most weekends when he slept in his campervan.
- The question to be determined is whether the sleepout remained principally as a place of residence for the owner. Respondent’s evidence
- The respondent said that during the earlier part of 2024, Mr N had rented a tiny house from him while the respondent had lived in the sleepout. They had shared the bathroom, toilet and shower in the sleepout.
- The respondent then offered Mr N and Ms K the sleepout while he took a job in Nelson. He said that the conditions were: a. shared bathroom, toilet and shower, b. take care of Cat, with the respondent covering all costs, food, collars, vet, c. a small space for the respondent’s valuables on the mezzanine floor.
- In the respondent’s mind, it was always intended to be a flat-sharing agreement.
- In mid-November 2024, before the applicants moved in, the respondent was working in Papua New Guinea. He had a “messenger” conversation with Ms K about the arrangement. The respondent said that she approached him and asked if the contract could between the respondent and her.
- The respondent said he sent Ms K a copy of a flat sharing agreement from the Tenancy service homepage. He produced a copy of a message dated 16 November 2024 sent at 7.42am to which he had attached a copy of a blank flat- sharing agreement.
- The respondent said that after Mr N had missed a payment on a personal loan, he made Mr N aware about it. The respondent said that Mr N then became abusive, insulting and threatening in his text messages denying any agreements about shared facilities and he locked the bathroom door so that the respondent could not access it anymore.
- During these conversations, on the 8th of January the respondent “offered him to keep the money” and asked him to find somewhere else to live. Mr N’s response was to insist on 3 months’ notice from the respondent.
- The respondent said that following another conversation between the respondent and Ms K on 11 January about the contract and what to write into it, he sent her a draft with questions. A copy of that message and an image of the draft contract was produced to the Tribunal.
- Ms K did not respond to either message.
- The respondent said that he gave the applicants notice after he learned that Mr N was rude to a friend who picked something up and that he breached the privacy of another “flatmate”. On the 2nd of February 2025 he sent them a notice of termination of the flat sharing agreement with the last day of occupation on the 27th of February. They ignored the notice, and rather than communicating, they decided to lodge an application with the Tenancy service.
- The respondent said that 7 Factory Rd is the only property he owns, that all his mail is sent there, including registration for his vehicle, IRD correspondence. The insurances, power and internet are in his name. He says that this is his principal place of residence and his home.
- The respondent said that regardless of whether Mr N’s occupation is considered a tenancy, his conduct was unacceptable. The respondent requested the Tribunal to order compensation for unlawful acts committed by him, whether he is considered a tenant, boarder or flatmate. He listed three items. Applicants’ evidence
- Mr N said that the respondent is not their flatmate and never has been. The applicants had been allowing him to use the bathroom within the sleepout whenever he stayed at the property.
- Mr N said that from the beginning of discussions they only ever discussed, rental tenancy and them taking over the sleepout when he left to work in Nelson. This was to be a long-term arrangement. Mr N said that the very first mention of the respondent being their flatmate and Head tenant was when he served Mr N with a trespass notice using head tenant as justification to do so.
- The respondent left his bed and his most valuables on the mezzanine floor: The applicants were told he needed to store personnel belongings on the mezzanine 3 days before the move in date.
- The applicant denied being abusive and set out an explanation of his actions described by the respondent. This evidence is not relevant to the question of jurisdiction.
- Mr N denied insisting on a three-month termination; rather he was pointing out to the respondent that the minimum he could legally give them without good reason, was 90 days.
- On 23 January the respondent sent a text advising that he was resigning his job in Nelson and moving back onto the property.
- Mr N responded to the allegations about his behaviour, but because I am making no determination on those matters I have not set out that evidence.
- Ultimately the applicants were seeking three more weeks so that they could pack and move out on Easter Sunday.
- Ms K said that the couple were offered the sleepout which the respondent was considering vacating and renting out while he took up a short-term contract in Papua New Guinea.
- Because the contract was put back, the respondent then got work in Nelson and he moved out of the sleepout and rented a room in Nelson until the contract in Papua New Guinea started. He was then going to resume his job at Aotea Electrical in Nelson.
- Ms K had a video call with the respondent to discuss how her move to Takaka might work. She said that they talked about bond, rent and a long-term tenancy. There was no mention of flat-sharing. She said that she would not have agreed to a flat-sharing arrangement. She said that she was giving up her job in Nelson and moving to Takaka. She wanted a long-term tenancy and had asked the respondent about renting the sleepout and he wanted to rent it out, but Ms K wanted to secure a job in Takaka first. The respondent wanted to rent it to the applicants and said that he could wait a bit longer.
- Ms K said that in late October she told the respondent that she had accepted a job offer in Takaka. In a text she said there needed to be a property inspection and move in date. She asked for a bank account to pay the rent, which was to be $300 for a single person and $350 for a couple. Internet and power was to shared and split between the three dwellings on the property. No bond was required as the respondent didn’t want to lodge it with tenancy services or pay tax on the income. She said that the bond money was left in the bank in case the respondent changed his mind.
- Ms K then set out a number of alleged breaches of the respondent’s obligations as a landlord. The law
- Section 5 of the Residential Tenancies Act 1986 provides that the Act is excluded in certain circumstances, including under paragraph (1)(n): 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:
- In many cases the Tribunal or court has asked the question of whether the premises were the principal place of residence. the case of Musson v Dobrisek CIV-2006-032-36, 5 May 2006, the District drew a distinction between the words “used as the principal place of residence” and the wording of the section, which is “used principally ... as a place of residence.” Therefore the question is whether the principal use of the premises is as a place of residence by the landlord. Judge Broadmore considered this interpretation reflects the policy objectives of the Act: 1 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.
- In the present case, on either approach, I am not satisfied that section 5(1)(n) applies. The premises have not been the respondent’s principal place of residence since November 2024. The fact that the address of 7 Factory Rd remains his postal address and the registered address for his business does not make the sleepout his principal place of residence. That was in Papua New Guinea and in Nelson, where he was renting a room.
- Nor were the premises principally used as the respondent’s residence. Since November 2024 the principal use of the sleepout, including the bathroom facilities, has been as the applicants’ residence. The respondent has stayed on the land from time to time in his camper van which is not part of the sleepout.
- When the respondent sent a blank flat-sharing agreement, there was no evidence of a response from the applicants, although in one version of the screenshot there is a blown-up thumbs up emoji. In another version there is no emoji. There were further messages that day but no reference to the agreement.
- Even if the flat-sharing agreement had been signed by the parties, it would not alter the situation for the following reasons: a. The agreement could not have applied to the situation because it refers to tenants and a “head tenant”. The respondent, as owner of the premises, is not a tenant, “head tenant” or otherwise. b. Section 11 of the Act provides that any agreement or arrangement that is inconsistent with the Act or purports to exclude, modify or restrict the operation of any provision shall be of no effect and any purported waiver by a tenant is of no effect. 1 At para 41.
- I find that the agreement between the parties was a tenancy agreement and therefore the Residential Tenancies Act applies.
- In the applicant’s message of 8 January Mr N said that they would be looking for another place. He said that they were entitled to 3 months’ notice from the landlord and they would be taking it. He did not actually give notice of an intention to terminate.
- There is no evidence that the landlord has given written notice to terminate in accordance with section 51 of the Act. However, the tenants have given at least 21 days’ notice to terminate on Sunday 20 April. At the hearing on 27 March 2025, they confirmed that the tenancy would end that day. Accordingly, the tenancy will terminate on that day.
- If either party wishes to pursue any other claim under the Residential Tenancies Act 1986, they must comply with the directions set out above.
- The applicants sought suppression of their name. They have been successful in their application for a declaration and so name suppression is granted. Because they have been successful, I must order reimbursement of the filing fee.