What was Tenancy Tribunal case 5222091 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 5222091?

The reconciled net award was $960.00.

What type of tenancy dispute was case 5222091?

The dispute type was not classified.

Where can I read the official tribunal order for case 5222091?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12014408-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5222091 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 5222091?

The reconciled net award was $960.00.

What type of tenancy dispute was case 5222091?

The dispute type was not classified.

Where can I read the official tribunal order for case 5222091?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12014408-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5222091 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5222091 — net $960.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Release bond	$960.00	Release bond
Net award	$960.00
Total payable by Landlord to Tenant	$960.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details.
The Tribunal does have jurisdiction to consider the application by the tenants.
Melissa Thompson must pay [The tenant/s] $960.00 immediately, being the bond.

Reasons

The tenants attended the video hearing.
The landlord did not attend the hearing. Telephone calls were made to the landlord on the number provided and also on the number provided in the “flatmate sharing agreement”. There was either no response to calls or the call went through to voicemail. The Tribunal may hear matters in the absence of a party where satisfied that notice of the hearing has been given. I am satisfied that notice of the hearing was given to the landlord.
The tenants seek release of the bond paid to the landlord of $960.00.
There is a preliminary issue whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 (“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. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined 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.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. 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.
Section 5(1)(n) RTA provides that the act will 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 landlords or owners 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 this case the parties have entered into a “Flat/house-sharing agreement” which purports to exclude coverage under the Residential Tenancies Act 1986.
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) RTA 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.
In the matter before the Tribunal, the premises in question were over 2 floors. The tenants lived on the ground floor. The area was entirely self-contained. The tenants had a separate key. The landlord lived on the upper floor and that area was similarly self-contained. The tenants said that the only time that the landlord entered their premises was to conduct an inspection.
The tenants said that they were not sure if the landlord was also the owner. That is not of relevance to the tribunals current inquiry.
Having reviewed the factors required in Harding’s case, I am satisfied that this was a tenancy and that the Tribunal does have jurisdiction to consider the tenants’ claim for release of the bond.
The tenant has applied for refund of their bond following the end of the tenancy.
Section 22B RTA provides: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded in full to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.
The landlord is ordered to release the bond to the tenants immediately.
The tenants applied for name suppression. The tenants have been wholly successful in this hearing and suppression of the tenants’ names and details is ordered.

Claims and awards in Tenancy Tribunal application 5222091 — net $960.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Release bond	$960.00	Release bond
Net award	$960.00
Total payable by Landlord to Tenant	$960.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details.
The Tribunal does have jurisdiction to consider the application by the tenants.
Melissa Thompson must pay [The tenant/s] $960.00 immediately, being the bond.

Reasons

The tenants attended the video hearing.
The landlord did not attend the hearing. Telephone calls were made to the landlord on the number provided and also on the number provided in the “flatmate sharing agreement”. There was either no response to calls or the call went through to voicemail. The Tribunal may hear matters in the absence of a party where satisfied that notice of the hearing has been given. I am satisfied that notice of the hearing was given to the landlord.
The tenants seek release of the bond paid to the landlord of $960.00.
There is a preliminary issue whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 (“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. The terms ’residential premises’, ‘tenancy’, and ‘tenancy agreement’ are defined 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.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. 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.
Section 5(1)(n) RTA provides that the act will 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 landlords or owners 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 this case the parties have entered into a “Flat/house-sharing agreement” which purports to exclude coverage under the Residential Tenancies Act 1986.
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) RTA 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.
In the matter before the Tribunal, the premises in question were over 2 floors. The tenants lived on the ground floor. The area was entirely self-contained. The tenants had a separate key. The landlord lived on the upper floor and that area was similarly self-contained. The tenants said that the only time that the landlord entered their premises was to conduct an inspection.
The tenants said that they were not sure if the landlord was also the owner. That is not of relevance to the tribunals current inquiry.
Having reviewed the factors required in Harding’s case, I am satisfied that this was a tenancy and that the Tribunal does have jurisdiction to consider the tenants’ claim for release of the bond.
The tenant has applied for refund of their bond following the end of the tenancy.
Section 22B RTA provides: (1) If there is a dispute between the parties as to the payment of a bond, either party may apply to the Tribunal for an order determining to whom the bond, or any part of it, is to be paid. (2) If the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The requirement for the landlord to file a counterclaim is mandatory. Therefore, because the landlord has not done so, the bond is refunded in full to the tenant. This does not prevent the landlord from filing a claim against the tenant at a later date. It just means that, if the landlord’s claim is successful, there is no bond to put towards any monetary award made.
The landlord is ordered to release the bond to the tenants immediately.
The tenants applied for name suppression. The tenants have been wholly successful in this hearing and suppression of the tenants’ names and details is ordered.

Tenancy Tribunal case 5222091 — Tenancy dispute

At a glance

Award balance

Tenancy Tribunal case 5222091 — Tenancy dispute

At a glance

Award balance

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