What was the outcome of Tenancy Tribunal case 5197513?

The tribunal order states: By declaration the relationship between the parties is not one of landlord and

How much money was awarded in case 5197513?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5197513?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5197513?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12087952-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5197513?

The tribunal order states: By declaration the relationship between the parties is not one of landlord and

How much money was awarded in case 5197513?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5197513?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5197513?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12087952-Tribunal_Order.pdf.

16 Forest Lake Road, Forest Lake, Hamilton 3200 Tenancy Tribunal Case 5197513 — Boarding House

Order

By declaration the relationship between the parties is not one of landlord and tenant and therefore not within the jurisdiction of the Tenancy Tribunal.
The application is dismissed.

Reasons

Both parties attended the hearing.
This matter was set down as a telephone conference and subsequently adjourned on 29 May 2025 for a face-to-face hearing.
This is a jurisdiction hearing to decide if this is a residential tenancy and comes within the jurisdiction Tenancy Tribunal.
For the sake of simplicity, I will call the parties landlord and tenant even though this is to be determined.
The tenant claims that this is a residential tenancy.
The landlord said that it was a boarder / flatmate agreement and is excluded from the Tribunals jurisdiction. It is his principal place of residence and excluded under section 5(1)(n) RTA. Onus of proof
Where, in any proceedings before the Tribunal, a party contends that the Residential Tenancies Act 1986 ,RTA, does not apply to a tenancy, it shall be for that party to establish the facts that it does not. See section 10 RTA. Background
The tenant lived at the premises from 11 January 2023 to 7 April 2025, paid rent and two weeks bond which was held by the landlord and not deposited at the bond centre. He said that initially the landlord lived there but when the landlords job changed in 2022, he rarely saw him.
The tenant said documents provided by the landlord said ‘boarding’, so he thought it was a boarding house. Two letters titled ‘letter of boarding arrangement’ dated 15 May 2023 and 10 November 2024 were provided.
The parties agreed that from 2022 to mid-2023 there were 6 people living at the premises because one flatmate had their girlfriend living there.
The premises have five bedrooms, and all facilities are shared,which are 1.5 bathrooms, one kitchen and refrigerator area, three lounges and one garden.
The landlord agreed that at one time 6 people lived at the premises, but this was never his intention and a special circumstance for his friend. He kept the bond in a separate bank account and has refunded all the bonds in full to previous flatmates.
The landlord said that this is a flatmate/boarder agreement and provided a copy of a current agreement format titled ‘Accommodation Sharing Agreement’. The tenant said his earlier version was called a ‘boarding arrangement’ which he never signed as he believed he was a tenant, and he would not agree to the landlord holding the bond and not depositing it with the bond centre.
The landlord said the premises are his principal place of residence and from the time he purchased it he has lived the about 50% of the time. He was living there full time until his job required him to travel. He is now living there 20-30% of the time.
In support the landlord provided documents that the tenancy address is •recorded by the IRD as his financial place of residence, •recorded as his mortgage statement address. •the address used for a jury service letter. •where he is enrolled to vote.
There are 2 issues to be determined, a) Is this a boarding house? b) Is this a flatmate/ boarder agreement and excluded by the RTA under section 51(1)(n)?
It was agreed that there was a verbal agreement for rent and bond to be paid. Each party had an individual agreement with the landlord and exclusive rights to a room and all facilities were shared.
The landlord specifically stated that it was not his intent for 6 or more persons to live at the premises. However, the Tribunal and appeal courts have held that the intent of parties is not as important as the intent of the legislature. The statute clearly sets out a number of matters required to establish a boarding house tenancy.
Grice J in Cavanagh v Egmont Eco Leasure Park [2022] NZHC 3601, stated at [34] In my view, it is possible to make sense of the definitions by asking the following questions:
(a) Does the house contain one or more bedrooms along with facilities for communal use by the tenants?
(b) Is the house occupied or intended to be occupied by 6 or more tenants?
(c) Is the tenancy intended to, or does in fact, last for 28 days or more?
(d) Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use?
(e) Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants? [35] If the answer to all of those questions is “yes”, then the tenancy is a boarding house tenancy and the rest of the provisions of Part 2A apply.
In applying this to the current set of facts I find that the landlord did not intend to have the premises occupied by 6 or more tenants. I do not find that because for 4 months of the tenants approximately 29-month tenancy,6 people lived at the premises that this completely changed the nature of the tenancy to become a boarding house.
The tenant raised that because the agreement provided to him said boarder that this also led him to believe it was somehow a boarding a house agreement. I do not agree that a boarding agreement equals a boarding house agreement. I find that the tenancy was not a boarding house.

Is it an agreement excluded by the RTA?

There is clearly an agreement to rent, rent and bond was paid, and the tenant lived there for approximately 2 years and 3 months.
A tenancy is defined by the RTA as, in relation to any residential premises, the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy.
A tenancy agreement is required to be in writing but is not excluded because this has not happened. See section 13C,RTA.
A tenant is defined in the RTA as, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement.
A boarder although not defined in the RTA was considered in Arkless v McClean, TT 2772 & 2773-97, 1-12-97-1 ,and held as a person who lives with the owner or legal occupier of the premises and who therefore has a licence from the owner or occupier to live there.
The landlord said that all the tenants were selected by him as flatmates and often he would ask the other flatmates their opinion if the new person would fit in with them.
The landlord said that it was his principal place of residence, and 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. See section 5(1)(n) RTA.
This issue was considered in Musson v Dobrisek (CIV-2006-032-36) where the District Court held that the question to be asked para ]39] is, is the principal use of these premises as a place of residence by the landlord.
I have considered the claimed amount of time spent by the landlord at the premises and also the other information provided by the landlord including that it is where he votes, has his financial address and documents sent, and called to serve on the jury if required, and ultimately the claim by the landlord is that this is his home.
The tenant contend that it is not the landlord’s principal place of residence, and the RTA does not apply. The onus is on him to establish this. He said that the landlord is rarely there, but little evidence was produced to support this claim. No times, dates or other material was supplied.
I find that the tenant has not persuaded me that this is a residential tenancy. I find that the tenancy is excluded by the RTA under section 5(1)(n) RTA. And the Tenancy Tribunal does not have jurisdiction to hear claim filed.

Tenancy Tribunal case 5197513 — Boarding House at 16 Forest Lake Road, Forest Lake, Hamilton 3200

At a glance

Tenancy Tribunal case 5197513 — Boarding House at 16 Forest Lake Road, Forest Lake, Hamilton 3200

At a glance

Claims & awards

Order

Reasons

Is it an agreement excluded by the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is it an agreement excluded by the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions