What was Tenancy Tribunal case 5208456 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 5208456?

Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5208456?

The dispute type was not classified.

Where can I read the official tribunal order for case 5208456?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12010762-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5208456 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 5208456?

Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5208456?

The dispute type was not classified.

Where can I read the official tribunal order for case 5208456?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12010762-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5208456 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 5208456 — net $687.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Release of bond	$660.00	Release of bond
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$687.00
Total payable by Landlord to Tenant	$687.00

Both parties attended the remote hearing on 19 June 2025.

I propose referring to the parties as “landlord” and “tenant” in this decision for the sake of brevity.

The living arrangements between the landlord and tenant commenced on 3 September 2022. I have used the term “living arrangement”, as the first issue that must be resolved by the Tribunal is whether the tenant was a boarder or a tenant. Jurisdiction

Section 4 of the Residential Tenancies Act 1986 (“RTA”) states that the Act will apply to every tenancy for residential purposes, except as specifically provided.

Section 5 RTA sets out the exclusions. Section 5(1)(n) RTA provides that the Act does not apply: “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.”

When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied.

In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.

The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house-sharing agreements.

The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.

The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.

The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant.

The landlord is the owner of the premises.

Section 10 RTA states that where in any proceeding before the Tribunal any party contends that the Tribunal does not have jurisdiction to hear the claim, it shall be for that party to establish the facts upon which it is contended that the RTA does not apply. The burden of proving that the RTA does not apply is on the landlord. The landlord must therefore prove, on the balance of probabilities, that the exemption above applies and that the Tribunal does not have jurisdiction.

The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994 stated that in order to give effect to the acts true intent and meaning, the exemptions in Section 5 RTA should be interpreted strictly and not liberally

The premises were not being used as a boarding house, as they fail to meet the definition of a “boarding house” contained in the Act.

If the premises are not separate, and used principally as a place of residence by the landlord, then the exclusion in s.5(1)(n) RTA will apply and the Tribunal has no jurisdiction to hear the claim. But, if the premises are separate, or not used principally as a place of residence by the landlord, then S.5(1)(n) RTA will not apply and the Tribunal will have jurisdiction to hear the dispute.

In deciding that the exclusion does not apply and that the Tribunal has jurisdiction, the following evidence is relevant.

The building is over 2 levels. The tenants reside on the lower level. The lower level consists of two bedrooms, kitchen/dining, separate lounge, bathroom, separate toilet, laundry and stairwell. All rooms, but for the laundry and stairwell, were for the exclusive use of the tenant. The laundry was shared by the parties.

The upper level was used almost exclusively by the landlord. It consisted of two bedrooms, lounge, kitchen/dining, bathroom, separate toilet and a balcony.

The landlord’s evidence was that occasionally the tenants would join them for a meal upstairs. The internet router was situated upstairs and occasionally the tenant would need access to it. The tenant accepted that they did go to the upper level, but infrequently.

The tenant’s outgoings (power, phone and internet) were paid for by the landlord.

The tenant had an allocated parking space.

There was no formal written agreement between the parties, whether that be for a tenancy or boarding arrangement.

There was an internal door between the lower level where the tenant resided and the stairwell. The door had a lock, but the landlord said that they never locked it. The tenant said that the door was locked when the landlord went on holiday.

Each of the parties had their own separate entrance to the building.

Having reviewed the evidence and taking into account that the burden of proving that the Tribunal does not have jurisdiction is on the landlord, I consider the landlord has not proven that it is more likely than not that this was a boarding arrangement. Having reached that conclusion, I find that the Tribunal does have jurisdiction. Tenant claims

The tenant seeks release of the bond paid and exemplary damages for the landlord’s failure to lodge the bond.

The Tribunal starts from the premise that bond money is the tenant’s money until such time as the landlord is able to prove otherwise. The release of the bond accordingly becomes dependent on the success or otherwise of the claims made by the landlord against the tenant.

The tenant claims the landlord failed to lodge the bond with the Bond Centre within the required period.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (see s 19(1) RTA). This applies whether the bond is paid in part or whole.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 (see s 19(2) and Schedule 1A RTA.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see section 109(3) RTA).

A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.

The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).

However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).

It was clear from the evidence that the landlord genuinely believed that this was a boarding arrangement and that there was no requirement that the bond be lodged. I do not consider that there was any evidence on which it could be inferred that the landlord was aware of the requirement to lodge the bond and failed to do so. The claim for exemplary damages is dismissed. Landlord claims

Landlords are required to provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (see s 45(1)(a) RTA). Tenants must keep the premises reasonably clean and tidy during the tenancy, and they must return them in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy (ss 40(1)(c) and (e)(iii) RTA).

In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: “A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters”.

The RTA does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable; not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.

The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).

Photos of the premises and video evidence was provided by the tenant. These showed the condition of the premises at the end of the tenancy.

The landlord said in evidence that the oven had been left in a “disgusting state”. There was dust and food particles throughout the premises. Dye stains were on the walls and picnic table. The landlord said that it took her 11.5 hours to clean the premises.

The tenant said that he considered that the photos and video’s provided to the Tribunal in evidence “spoke for themselves”. The sole issue for the Tribunal to consider is whether the premises have been left reasonably clean and tidy. The burden of proving that the premises had not been left at that standard is on the landlord. In this matter, I prefer the evidence proffered by the tenant. The photos and videos show premises which had been left in a reasonably clean and tidy state. That is the sole requirement under the Act on the tenant. Damage to hand basin.

The landlord says that the hand basin was damaged during the tenancy. The burden of proving that the damage occurred during the tenancy is on the landlord.

The landlord said that the crack was on the left hand side of the basin. There had been a smaller crack to the right hand side of the handbasin, but this was not the damage said to have occurred during the tenancy. The landlord seeks compensation for the $400.00 insurance excess on her claim for the replacement of the basin.

The tenant said that the damage existed at the start of the tenancy. He provided evidence from the previous tenant who confirmed that there had been a crack on the left hand side when he was the tenant. The previous tenant said “ I’m pretty sure that scratch was there when I moved in. It definitely wasn’t as visible, but I remember there being a scratch/hairline crack on the left side of the sink hole (which that matches). “

The burden of proving that it is more likely than not that the damage occurred during the term of the tenancy is on the landlord. Evidence from the previous tenant to the contrary is such that I do not consider that the landlord has met that evidential burden and the claim is dismissed. Leak

A leak has occurred in the upper level of the premises. The landlord did not suggest that the leak was caused by the tenant. The leak has however resulted in damage to the downstairs area. The damage in the downstairs area was to a wall behind where a couch was situated. The landlord suggested that had the tenants properly cleaned the premises they would have discovered the damage. The obligation on the tenant is to keep the premises reasonably clean and tidy. That may require a couch to be shifted from time to time. The Tribunal would require further evidence, than that provided by the landlord of the area damaged and whether the tenant would be required to move the couch to achieve that standard. That evidence has not been proffered by the landlord and the claim is dismissed.

The landlord referred to an oak dresser having been stained. No evidence as provided to support the allegation and the landlord accepted that she “didn’t have a clue” when asked to provide a value for the dresser. The claim is dismissed for lack of supporting evidence.

The landlord is ordered to release the bond of $660.00 to the tenant immediately.

As [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Both parties applied for name suppression. The tenant has been substantially successful in this matter and suppression of the tenant’s name and details is ordered. The landlord has not been wholly or substantially successful in this hearing and the landlord’s application for name suppression is dismissed.

Reasons

Claims and awards in Tenancy Tribunal application 5208456 — net $687.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Release of bond	$660.00	Release of bond
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$687.00
Total payable by Landlord to Tenant	$687.00