What was Tenancy Tribunal case 5236218 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 5236218?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5236218?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5236218?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12141610-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5236218 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 5236218?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5236218?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5236218?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12141610-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5236218 — Boarding House

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Respondents name and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
The applicant claimed the refund of the bond and rent in advance.
There is a preliminary issue whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 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.
The Respondent submits that the arrangement was a flatmate agreement, not a residential tenancy. The property in question was a two-bedroom house owned by the Respondent’s brother. The Applicant was to occupy one bedroom, which was furnished with a bed, table, and chair, and share the kitchen and bathroom with the other occupant.
The Respondent acted as property manager on behalf of her brother. One bedroom was occupied by the brother’s friend, and the Applicant was to occupy the second bedroom. The Respondent advertised the vacancy on Facebook using words to the effect of “Flatmate wanted, 2 weeks bond.” The Applicant’s friend responded to the advertisement on his behalf, as the Applicant was still residing in India at the time. The Applicant agreed to pay two weeks’ bond in advance. However, upon arrival, the Applicant found the property to be in an unsatisfactory condition and chose not to move in, subsequently requesting the return of the bond.
The Applicant claims that the arrangement constituted a verbal residential tenancy agreement. He asserts that he paid two weeks’ bond and one week’s rent and alleges that the Respondent’s father occupied the other bedroom. However, no evidence was submitted to support this claim.
In Karmarkar v Pandem [2018] NZHC 693, the High Court set out how to determine whether a property qualifies as a boarding house. Justice Van Bohemen outlined five key questions (at paragraph [34]): a. Does the house have one or more bedrooms and shared facilities (e.g., kitchen, bathroom)? b. Is it occupied (or meant to be) by six or more tenants? c. Is the tenancy intended to last 28 days or more? d. Do tenants have exclusive rights to specific bedrooms? e. Is each tenant's right to occupy based on an agreement with the landlord, not with other tenants? If the answer to all five is “yes,” then it's a boarding house tenancy.
In considering the evidence, I find that the arrangement does not meet the legal definition of a tenancy but rather a flatmate arrangement. It was intended for the Applicant to occupy a single bedroom and share communal facilities, which is distinct from a tenancy where the tenant is granted exclusive possession of self- contained premises. Furthermore, the property was not, nor was it intended to be, occupied by six or more individuals, typical of a boarding house. The Applicant's family did not reside at the premises, and the Applicant was managing the property solely on behalf of the legal owner, her brother.
I find this is not a Tenancy Agreement and the Tribunal does not have jurisdiction to determine this issue.
The claim is dismissed.
As the Respondent has been successful in this hearing, name suppression is granted. As the Applicant has not been successful name suppression is declined.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Respondents name and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
The applicant claimed the refund of the bond and rent in advance.
There is a preliminary issue whether the Tribunal can hear the claim. Section 77(1) Residential Tenancies Act 1986 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.
The Respondent submits that the arrangement was a flatmate agreement, not a residential tenancy. The property in question was a two-bedroom house owned by the Respondent’s brother. The Applicant was to occupy one bedroom, which was furnished with a bed, table, and chair, and share the kitchen and bathroom with the other occupant.
The Respondent acted as property manager on behalf of her brother. One bedroom was occupied by the brother’s friend, and the Applicant was to occupy the second bedroom. The Respondent advertised the vacancy on Facebook using words to the effect of “Flatmate wanted, 2 weeks bond.” The Applicant’s friend responded to the advertisement on his behalf, as the Applicant was still residing in India at the time. The Applicant agreed to pay two weeks’ bond in advance. However, upon arrival, the Applicant found the property to be in an unsatisfactory condition and chose not to move in, subsequently requesting the return of the bond.
The Applicant claims that the arrangement constituted a verbal residential tenancy agreement. He asserts that he paid two weeks’ bond and one week’s rent and alleges that the Respondent’s father occupied the other bedroom. However, no evidence was submitted to support this claim.
In Karmarkar v Pandem [2018] NZHC 693, the High Court set out how to determine whether a property qualifies as a boarding house. Justice Van Bohemen outlined five key questions (at paragraph [34]): a. Does the house have one or more bedrooms and shared facilities (e.g., kitchen, bathroom)? b. Is it occupied (or meant to be) by six or more tenants? c. Is the tenancy intended to last 28 days or more? d. Do tenants have exclusive rights to specific bedrooms? e. Is each tenant's right to occupy based on an agreement with the landlord, not with other tenants? If the answer to all five is “yes,” then it's a boarding house tenancy.
In considering the evidence, I find that the arrangement does not meet the legal definition of a tenancy but rather a flatmate arrangement. It was intended for the Applicant to occupy a single bedroom and share communal facilities, which is distinct from a tenancy where the tenant is granted exclusive possession of self- contained premises. Furthermore, the property was not, nor was it intended to be, occupied by six or more individuals, typical of a boarding house. The Applicant's family did not reside at the premises, and the Applicant was managing the property solely on behalf of the legal owner, her brother.
I find this is not a Tenancy Agreement and the Tribunal does not have jurisdiction to determine this issue.
The claim is dismissed.
As the Respondent has been successful in this hearing, name suppression is granted. As the Applicant has not been successful name suppression is declined.

Tenancy Tribunal case 5236218 — Boarding House

At a glance

Tenancy Tribunal case 5236218 — 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