What was Tenancy Tribunal case 5219192 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 5219192?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5219192?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5219192?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11859988-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5219192 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 5219192?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5219192?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5219192?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11859988-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5219192 — Boarding House

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and landlord’s name and identifying details.
The parties have entered in a residential tenancy agreement, which is not excluded from the provisions of the Act.
The notice to terminate the tenancy on 28 January 2025 is invalid.
The application for possession is dismissed.

Reasons

The landlord appeared supported by a daughter. The tenant, who is also the landlord’s daughter, appeared supported by her own daughter. The parties and their supporters are all related.
At the conclusion of the hearing, I gave a brief oral decision that, in my view, the parties had entered into a residential tenancy agreement, which is not excluded from the provisions of the Residential Tenancies Act 1986 (the “Act”), and that the notice to terminate the tenancy on 28 January 2025 was invalid.
The property is a standalone two-bedroom bungalow. The landlord’s, who are both in their nineties, reside in a separate house nearby. Both dwellings are on a small farm. The landlord states that on or about 06 February 2010, they entered into an agreement with the tenant, and her then partner, to rent the property. There is no standard form tenancy agreement, and the terms are recorded in a rent book, which has been produced. The rent book records that on 06 February 2010, the landlord and the tenant entered into an agreement to rent the premises for $120.00 per week. The rent book shows that regular rent payments stopped around 12 February 2011.
The landlord’s state they now wish to sell their home, and possibly some land, and move into the tenant’s property.
On 25 November 2024, the landlord attached to the door of the property, a notice giving 63 days’ notice to end the tenancy, stating that they, the owner, wished to reside in the property. The notice gave the last day of the tenancy as 28 January 2025.
The landlord states that the tenant has refused to vacate, and on 08 April 2025, they filed an application for possession.
The tenant challenges the jurisdiction of the Tribunal to consider the landlord’s claim, arguing that there was no tenancy agreement, and even if there is, the agreement is excluded from the provisions of the Act due to the familial relationship between the parties. The tenant also challenges the validity of the notice, claiming they do not believe the landlord intends to reside in the property. Law
Section 77(1) Residential Tenancies Act 1986 (The “Act”) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies.
Section 4 provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) of the Act defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy.
The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined in section 2(1) as: • Residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. • Tenancy, in relation to any residential premises, means 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. • Tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement. • Rent is defined and means any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the applicant; but does not include any sum of money payable or paid by way of bond.
In Melmerly Investments Ltd v McGarry CA141/01, 6 November 2001, the Court of Appeal confirmed at [21] that the Court is concerned only with the presence of consideration and did not assess the comparative value of the acts or promises of the parties, and that nominal consideration would be sufficient.
Section 5 sets out a variety of circumstances where a tenancy is excluded from the Act.
Section 5(1)(n) 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.
Section 2(1) defines a member of the landlord’s or owners’ family [ in relation to a landlord or an owner as – •Any person who is or has been related to the landlord or owner – i. by blood: or ii. by or through marriage, a civil union, or defacto relationship; or iii. by adoption: •any other person who is a member of the landlord’s or owner’s whanau or other culturally recognised group: •any child who is being, or is to be, care for on any continuous basis by – i. the landlord’s or owner; or ii. the landlord’s or owners’ spouse, civil union partner, or defacto partner.
In the case of Voss v Voss [2022] NZDC 667, the landlord (mother) and tenant (daughter) had entered into a residential tenancy agreement using a standard form Tenancy Services tenancy agreement. The landlord issued notice to terminate the tenancy on the basis that they intended selling. The tenant refused to vacate, and the landlord sought possession.
The Tribunal found that the exclusion in section 5(1)(n) applied, stating at paragraph [6]: “The Act does not apply to this tenancy as the premises were principally used as a place of residence by the landlord’s daughter, a member of her family”.
Overturning the Tribunal’s decision and granting the landlord possession under the provisions of the Act the Court stated at [6] - [9]: [6] Trudi Voss is the sole occupant of the residence in question. Section 5(1)(n) of the Act provides that the Act shall 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. [7] Whether the exclusion of the Act applies in the present case is a matter of statutory interpretation. The effect of the wording “continue to be used and “during the tenancy” are indicative of two concurrent occupations. The wording points to an intention by Parliament to exclude the Act in situations where the landlord, owner, or their family continue to “use” the premises “principally as a place of residence” throughout and “during the tenancy” of an additional tenant or tenants. As such, the subsection is not intended to apply to a sole tenancy of a family member where there is no concurrent occupation. [8] This interpretation is consistent with the discussion of 5(1)(n) in Residential Tenancies: Law and Practice which provides, para 2.7 .6(b): It is not uncommon for the owner of the house to share it with “tenants”. The living arrangements are usually the same as other tenancies. Yet, because one of the occupants owns to house, the other occupants may not be protected by the Act. [9] it follows that were there is an occupation by a family member of the owner of the premises, and there are other occupants, the other occupants may not be protected by the Act. The wording makes it clear that the Act does not contemplate excluding a tenancy where there is no additional occupant.
Following Vos v Voss, the exclusion in 5(1)(n) will apply where there is two concurrent occupations, situations where the owner or landlord, or their family members continue to use the premises principally as a place of residence alongside the tenant.
Section 8 of the Act provides that, where the Act is excluded by sections 5 to 7, if the premises are used for residential purposes, the parties can contract back into some or all the provisions of the Act. There is common ground between the parties that should an exclusion apply that neither party at the time of entering the licence or subsequently has contracted back into the provisions of the Act.
Under Section 10 of Act the party challenging the jurisdiction of the Tribunal must establish on the balance of probabilities, which is more likely than not, that one of the exclusions in section 5(1) apply. Parties evidence
The tenant initially denied entering into an agreement, stating that she and her partner were simply offered the use of the property with no expectation that they pay for the privilege. The tenant later accepted that they entered into a tenancy agreement but that the agreement had ended when their partner left. The tenant claimed they had the ceased paying rent. The tenant stated that they ceased paying rent because they could no longer afford to do so.
The tenant stated that when they offered to pay rent their mother had declined to accept it, but they had continued to provide services in lieu of rent, such as looking after the landlord’s animals, although this had also proved to be too much.
The landlord accepted rent payments had ceased but the tenant had continued to provide services in lieu of, although no records appear to have been kept. Despite claims by the tenant, the landlord denied altering the terms of the agreement or waiving the obligation to pay rent. Although they had not issued any breach notices or taken any steps to recover outstanding rent, the rent owing would be accounted for in their estate.
The tenant states despite having granted the tenant the right to occupy the property the landlord continued to access the property without permission. On that basis they believed the landlord to be in concurrent occupation. The landlord denied “occupying” the property, stating they lived in their own home nearby, and had only entered the property with the tenant’s permission. Decision on jurisdiction
Having heard from the parties, I prefer the landlord’s account as more consistent. I am satisfied that the parties entered in a residential tenancy agreement, as defined under the Act, and that the tenants right to occupy the property was in return for rent and or services in lieu of rent. I accept the evidence of the landlord that the nature of the arrangement had not been altered and that the obligation to pay rent accrued as a debt.
There is insufficient evidence of concurrent occupation of the property. While the parties are related, and are family members as defined under section 2(1), applying Voss v Voss, their contractual relationship is not excluded under 5(1)(n) of the Act.
The Tribunal has jurisdiction to deal with the landlord’s claim for possession. Termination notice
Section 51(1)(a) of the Act allows the landlord to give 63 days’ notice if the owner intends occupying the property within 90 days of the termination.
Section 136 (7) of the Act states where a notice is delivered to the address, it is deemed served on the second working day after it was delivered, unless proven otherwise.
Section 136A of the Act provides that time is counted from the day after the notice is deemed to have been served.
Before the Tribunal can order possession under section 64 of the Act it must be satisfied that the notice which the application for possession relies on is valid. Decision on validity of notice.
The tenant does not believe that the landlord intends occupying the property. However, there is a more fundamental issue concerning the timing of service and notice period.
The notice is dated 25 November 2024 and gives the last date of the tenancy as 63 days later, on 28 January 2025. Initially, the landlord stated that the notice was placed on the door by another family member on their behalf, who also took a photograph of the notice in situ, which has been produced.
The tenant challenged this, stating that the notice had not been placed on the door on 25 November 2024, but rather the following day, 26 November 2024. The landlord accepted that this was correct.
The effective service date of a notice that is delivered to the property, such as being placed on the front door, is two working days after it is delivered. In this case, there were two possible effective service dates: either 27 November 2024, or 28 November 2024. In both cases, however, the notice fails to give the required minimum 63 days. Sixty - three days from 27 November 2024 is 29 January 2025, 63 days from 28 November 2024 is 30 January 2025. Therefore, in either case, the notice period is insufficient. The notice period must be at least 63 days and cannot be truncated without the consent of both parties. As a result, the notice to end the tenancy on 28 January 2025 is invalid and of no effect. Name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
In this case neither party has been wholly or substantially successful. However, while I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the tenant. The dispute arises within a family context and remains unresolved. I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion in subsection 95A (4), and order suppression of the parties’ names and the address of the property.

Tenancy Tribunal case 5219192 — Boarding House

At a glance

Tenancy Tribunal case 5219192 — Boarding House

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions