What was Tenancy Tribunal case 5272341 about?

The tribunal order states: The claim is struck out for want of jurisdiction.

How much money was awarded in case 5272341?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5272341?

The dispute type was not classified.

Where can I read the official tribunal order for case 5272341?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12146229-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5272341 about?

The tribunal order states: The claim is struck out for want of jurisdiction.

How much money was awarded in case 5272341?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5272341?

The dispute type was not classified.

Where can I read the official tribunal order for case 5272341?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12146229-Tenancy_Tribunal_Order.pdf.

9 Caserta Place, Clover Park, Auckland 2023 Tenancy Tribunal Case 5272341 — Tenancy dispute

Order

The claim is struck out for want of jurisdiction.

Reasons

Only representatives of Monte Cecilia Housing Trust attended the hearing.
The parties entered into a Deed of Lease dated 15 March 2019 where the lessor/landlord grants the lessee/tenant a right to use the property for residential housing and enter into a residential tenancy agreement to an individual or individuals to personally reside at the property.
It is common ground that the tenant/lessee Monte Cecilia Housing Trust is a social housing provider who uses the premises to provide social housing to their sub-tenants. Monte Cecilia Housing Trust have not leased this property from the lessor to personally occupy the premises.
In this application, Monte Cecilia Housing Trust seeks a work order and compensation against the lessor.
I have to determine in the first instance whether the parties’ Deed of Lease falls within the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 (‘RTA’).
Representatives for Monte Cecilia Housing Trust confirmed that the lease was not entered into to provide accommodation to Monte Cecilia Housing Trust or their staff. In any event, it was not possible for Monte Cecilia Housing Trust, as an incorporated entity, to “personally” occupy the premises.
I am satisfied that the Deed of Lease was not entered into to evade the RTA.
I find that the RTA does not apply to this lease/tenancy between the landlord/lessor and Monte Cecilia Housing Trust as lessee/tenant.
Section 5(1)(s) RTA states that the Act does not apply where the tenancy agreement— (i)is genuinely entered into to enable a tenant (the sublandlord) to sublet the premises to provide accommodation for— (A) other people for commercial gain; or (B) the sublandlord’s employees; or (C) persons on low incomes; or (D) persons with special housing needs; or (E) persons whose disabilities mean that they need support or supervision in their housing; and (ii)is not entered into to provide accommodation for the sublandlord or to evade this Act or any of its provisions; and (iii)expressly provides that the sublandlord will not personally occupy the premises.
Prima facie, I find that the parties’ Deed of Lease is excluded from the RTA under section 5(1)(s) RTA.
Under section 8 RTA, parties to excluded tenancies can contract back into the Act and confer jurisdiction on the Tenancy Tribunal to hear and determine the claim.
However, there is nothing on the Deed of Lease to indicate that the parties have contracted back into the RTA pursuant to section 8 RTA.
Clause 42 of the Deed of Lease states: Residential Tenancy Act 1986: Subject to the terms and covenants expressed in this lease, if a provision is not contained in this lease, sections [insert sections] shall apply.
In my opinion, Clause 42 of the Deed of Lease does not assist Monte Cecilia Housing Trust’s submission that the parties have contracted back into the Act.
No section or sections of the RTA have been inserted to clause 42. That clause does not, for example, confer jurisdiction onto the Tenancy Tribunal to apply the RTA to the Deed of Lease despite the provision of section 5(1)(s) RTA which states that the Act does not apply to a lease between the landlord and a social housing sub-landlord.
For the parties to have effectively contracted back into the RTA, they must have agreed in writing that: a. all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree; and b. the Tenancy Tribunal has been conferred jurisdiction, in respect of the tenancy, all or any of the jurisdiction conferred on the Tribunal by this Act in respect of tenancies to which this Act applies.
The parties have not done so.
For instance, the parties have not entered into a standard form residential tenancy agreement which might imply that the RTA applies and the parties have contracted back into the Act. The document in question is called a Deed of Lease which is commonly described in commercial leases.
Further, in order for parties to excluded tenancies to agree that the provisions of the RTA shall apply in respect of the tenancy (which is otherwise excluded), it is my view that the parties should do so knowingly, in appreciation that their tenancy/lease is otherwise excluded but nevertheless the parties agreed in writing that all or some of the other RTA provisions shall apply, minus the material exclusion in question. See section 8 Residential Tenancies Act 1986.
For example, the parties to this lease that is excluded under s5(1)(s) RTA could have expressly stated in the Deed of Lease that notwithstanding s5(1)(s) RTA, all other provisions of the Residential Tenancies Act 1986 apply to the lease or with the exception of s5(1)(s) RTA, all other provisions of the Residential Tenancies Act 1986 apply to the lease.
I adopt the ruling of the Tribunal in Petrus and Blommestijn v Visionwest Community Trust Inc [2020] NZTT Waitakere 4245116 that the RTA is not really designed for the parties’ purpose which was to enable the tenant to provide social housing. The RTA is designed to apply to residential landlords and tenants who live in the property and are responsible for it. It applies for example to the tenancy contracts between the community trust and their social housing tenants.
Likewise in this case, the tenant Monte Cecilia Housing Trust is not a residential tenant in the sense that the RTA regards that term.
The parties’ lease remains excluded under section 5(1)(s) of the Residential Tenancies Act 1986. There was no contracting back into the RTA under section 8 RTA.
The claim filed by Monte Cecilia Housing Trust fails for want of jurisdiction.

Reasons

Only representatives of Monte Cecilia Housing Trust attended the hearing.

The parties entered into a Deed of Lease dated 15 March 2019 where the lessor/landlord grants the lessee/tenant a right to use the property for residential housing and enter into a residential tenancy agreement to an individual or individuals to personally reside at the property.

It is common ground that the tenant/lessee Monte Cecilia Housing Trust is a social housing provider who uses the premises to provide social housing to their sub-tenants. Monte Cecilia Housing Trust have not leased this property from the lessor to personally occupy the premises.

In this application, Monte Cecilia Housing Trust seeks a work order and compensation against the lessor.

I have to determine in the first instance whether the parties’ Deed of Lease falls within the jurisdiction of the Tenancy Tribunal and the Residential Tenancies Act 1986 (‘RTA’).

Representatives for Monte Cecilia Housing Trust confirmed that the lease was not entered into to provide accommodation to Monte Cecilia Housing Trust or their staff. In any event, it was not possible for Monte Cecilia Housing Trust, as an incorporated entity, to “personally” occupy the premises.

I am satisfied that the Deed of Lease was not entered into to evade the RTA.

I find that the RTA does not apply to this lease/tenancy between the landlord/lessor and Monte Cecilia Housing Trust as lessee/tenant.

Section 5(1)(s) RTA states that the Act does not apply where the tenancy agreement— (i)is genuinely entered into to enable a tenant (the sublandlord) to sublet the premises to provide accommodation for— (A) other people for commercial gain; or (B) the sublandlord’s employees; or (C) persons on low incomes; or (D) persons with special housing needs; or (E) persons whose disabilities mean that they need support or supervision in their housing; and (ii)is not entered into to provide accommodation for the sublandlord or to evade this Act or any of its provisions; and (iii)expressly provides that the sublandlord will not personally occupy the premises.

Prima facie, I find that the parties’ Deed of Lease is excluded from the RTA under section 5(1)(s) RTA.

Under section 8 RTA, parties to excluded tenancies can contract back into the Act and confer jurisdiction on the Tenancy Tribunal to hear and determine the claim.

However, there is nothing on the Deed of Lease to indicate that the parties have contracted back into the RTA pursuant to section 8 RTA.

Clause 42 of the Deed of Lease states: Residential Tenancy Act 1986: Subject to the terms and covenants expressed in this lease, if a provision is not contained in this lease, sections [insert sections] shall apply.

In my opinion, Clause 42 of the Deed of Lease does not assist Monte Cecilia Housing Trust’s submission that the parties have contracted back into the Act.

No section or sections of the RTA have been inserted to clause 42. That clause does not, for example, confer jurisdiction onto the Tenancy Tribunal to apply the RTA to the Deed of Lease despite the provision of section 5(1)(s) RTA which states that the Act does not apply to a lease between the landlord and a social housing sub-landlord.

For the parties to have effectively contracted back into the RTA, they must have agreed in writing that: a. all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree; and b. the Tenancy Tribunal has been conferred jurisdiction, in respect of the tenancy, all or any of the jurisdiction conferred on the Tribunal by this Act in respect of tenancies to which this Act applies.

The parties have not done so.

For instance, the parties have not entered into a standard form residential tenancy agreement which might imply that the RTA applies and the parties have contracted back into the Act. The document in question is called a Deed of Lease which is commonly described in commercial leases.

Further, in order for parties to excluded tenancies to agree that the provisions of the RTA shall apply in respect of the tenancy (which is otherwise excluded), it is my view that the parties should do so knowingly, in appreciation that their tenancy/lease is otherwise excluded but nevertheless the parties agreed in writing that all or some of the other RTA provisions shall apply, minus the material exclusion in question. See section 8 Residential Tenancies Act 1986.

For example, the parties to this lease that is excluded under s5(1)(s) RTA could have expressly stated in the Deed of Lease that notwithstanding s5(1)(s) RTA, all other provisions of the Residential Tenancies Act 1986 apply to the lease or with the exception of s5(1)(s) RTA, all other provisions of the Residential Tenancies Act 1986 apply to the lease.

I adopt the ruling of the Tribunal in Petrus and Blommestijn v Visionwest Community Trust Inc [2020] NZTT Waitakere 4245116 that the RTA is not really designed for the parties’ purpose which was to enable the tenant to provide social housing. The RTA is designed to apply to residential landlords and tenants who live in the property and are responsible for it. It applies for example to the tenancy contracts between the community trust and their social housing tenants.

Likewise in this case, the tenant Monte Cecilia Housing Trust is not a residential tenant in the sense that the RTA regards that term.

The parties’ lease remains excluded under section 5(1)(s) of the Residential Tenancies Act 1986. There was no contracting back into the RTA under section 8 RTA.

The claim filed by Monte Cecilia Housing Trust fails for want of jurisdiction.

Tenancy Tribunal case 5272341 — Tenancy dispute at 9 Caserta Place, Clover Park, Auckland 2023

At a glance

Claims & awards

Tenancy Tribunal case 5272341 — Tenancy dispute at 9 Caserta Place, Clover Park, Auckland 2023

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions