What was Tenancy Tribunal case 5278299 about?

The tribunal order states: The hearing is adjourned.

How much money was awarded in case 5278299?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5278299?

The primary dispute was Mould & damp. Related themes: Cleanliness, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5278299?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12405541-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5278299 about?

The tribunal order states: The hearing is adjourned.

How much money was awarded in case 5278299?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5278299?

The primary dispute was Mould & damp. Related themes: Cleanliness, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5278299?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12405541-Tenancy_Tribunal_Order.pdf.

Unit/Flat 320, 15 Wellesley Street West, Auckland Central, Tenancy Tribunal Case 5278299 — Mould & damp

Order

The hearing is adjourned.
I find that the tenancy at Room 320, 15 Wellesley Street West, Auckland Central, Auckland 1010 is not excluded from the Residential Tenancies Act 1986 (“RTA”).
A further 4 hours should be allowed for the next hearing of this matter, scheduled before me at the Tenancy Tribunal at Auckland no sooner than two months’ time for a face-to-face hearing.

Reasons

Both parties attended the hearing via videoconference. Employees of Tuscancity Property Management Limited and Icon Hotels Limited attended the videoconference for the landlord.
The tenancy was from 1 November 2024 to 31 March 2025.
On 3 June 2025, the tenant applied for compensation and exemplary damages for various issues including maintenance issues, Healthy Homes Standards issues, misrepresentation of tenancy, fake advertising and non-compliant tenancy agreement. Essentially, the tenant claimed that the premises should come under the jurisdiction of the RTA and not excluded under the pretence of being a hotel.
The landlord argued that the premises was a hotel and that the landlord’s obligations under the RTA did not apply.
In this order, I deal with who the correct respondent should be and whether the RTA applies to this tenancy.

Who is the respondent?

The tenant had made this application against Tuscancity Property Management Limited as the respondent.
“Elliot Hotel” has 70 rooms. Majority of the rooms were studios, but the premises also had 1-bedroom, 2-bedroom and 3-beroom rooms.
Tuscancity Property Management Limited managed all 70 rooms on behalf of Elliott Hotel Property Management. Elliott Hotel was run by Icon Hotels Limited.
Although Tuscancity Property Management Limited acted as the agent for Icon Hotels Limited trading as Elliot Hotel Property Management, as the “Hotel Guest Agreement” was signed by Elliot Hotel Property Management only, there is nothing to create any contractual relationship between the tenant ad Tuscancity Property Management Limited.
Therefore, the respondent’s name has been amended to Icon Hotels Limited trading as Elliott Hotel Property Management. RTA applies unless specifically excluded
I now turn to consider whether the RTA applies to this tenancy or not.
Section 4 of the RTA states that the RTA applies to every tenancy for residential purposes except as specifically provided.
Section 5(1) specifies when the RTA does not apply. The relevant exclusions that the landlord argued were follows: a. The premises was a commercial premises – section 5(1)(a) b. The premises constitute part of any hotel in respect of which an on-licence is in force under the Sale and Supply of Alcohol Act 2012 (“SSAA”) – section 5(1)(j) c. The premises are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and are subject to an agreement that has been entered into for the purposes of providing temporary or transient accommodation that continues to be provided under the agreement – section 5(1)(k)

Was the premises commercial premises?

The landlord argued that the building was a commercial property comprising of hotel apartments, restaurants, retail spaces and Attic Backpacker - that it was not a residential building and therefore does not fall under the jurisdiction of the RTA.
There are commercial tenants within the same building but Elliott Hotel houses residential tenants only. The restaurants, retail spaces and Attic Backpacker do not share the same entrance to Elliott Hotel and are entirely separate.
I do not find that the tenanted premises can be described as commercial premises. The premises constitute part of any hotel with on-licence in force
The landlord presented a copy of the liquor licence issued under the SSAA on 20 September 2018. The licence is due to expire on 20 September 2026.
The landlord claimed that this supported the landlord’s position that the RTA did not apply.
This licence proves that at the time the liquor licence was issued that the premises was permitted to supply alcohol according to the licence through a manager or managers appointed under the SSAA.
At the hearing, a photo of an A4-paper taped onto a wall was presented as evidence. It had the heading “Mini Bar” with a list of beverages, snacks and foods with their respective prices. It was written “please text/call Lee Hoang 021 190 1311 to place an order.”
At the hearing, that number was called but it did not ring at all. The tenant said that number did not work.
When the landlord was asked as to how guests could buy alcohol pursuant to the on-licence, the landlord confirmed that guests were unable to order over the phone. The landlord also confirmed that there was no physical bar that was operating currently. The landlord proposed that the guests could find the hotel employee to order the drink.
The landlord said that there was alcohol in the fridge and that it could legally be sold.
The Icon Hotels Limited employee that attended the hearing said that there were 4 employees that worked for Elliott Hotel.
I do not find the suggestion that the guests could somehow find a hotel employee to order alcohol from is plausible.
The real issue regarding whether section 5(1)(j) exception applies is not whether there is an on-licence for alcohol but whether the premises constitute part of any hotel.
The landlord confirmed that there was no reception area or receptionists for walk-in guests. In fact, Elliott Hotel was not accessible by anyone unless there was a swipe key. There was no housekeeping for the guests. There were no services provided by Elliott Hotel that one could expect from any other hotels.
The phone number listed on Google for Elliott Hotel of 09 308 9334 was disconnected when tried at the hearing.
It was not even possible to book for a room at Elliott Hotel through any popular online hotel booking platforms. The landlord said that they could be booked through Trade Me or Airbnb. It was noted that the premises was advertised under “residential for rent” on Trade Me.
The landlord was asked to what makes Elliott Hotel a real hotel. The landlord said that there was a weekly cleaner for the common area. I do not find that Elliott Hotel is currently operating as a real hotel at all.
Therefore, I do not find that the tenancy premises was a part of a hotel in respect of which an on-licence is in force under SSAA.

Is it intended to provide temporary or transient accommodation?

Section 5(1)(k) RTA makes an exception for premises that is intended to provide for temporary or transient accommodation, ordinarily for period of less than 28 days at a time with accompanying agreement to reflect the temporary or transient nature of the accommodation.
The parties signed a “hotel guest agreement” specifying the term of the agreement from 1 October 2024 to 31 March 2025.
In the agreement, it required “the guest” to notify Elliott Hotel Property Management their intention to vacate with 28 days’ written notice prior to the end date.
Bed linen, towelling, toiletries and vacuum were not provided.
The guest was responsible to maintain the room with a “high degree of cleanliness at all times as to avoid mould/pests/insects/bugs.” A vacuum was available for hire from the management office and the guest was responsible to empty vacuum container after use.
The guest was also responsible for putting rubbish in the appropriate rubbish bins. The bins were located at the back stairwell on the same floor through the fire exit signed door.
No pets were allowed unless approved by property manager.
The guests were required to open his or her own power account with his or her preferred electricity company. It was the guest’s responsibility to close the said account at the end of the term. It was also stipulated that “the guest must provide proof of account set up no more than 1 month after the start date.”
Elliott Hotel Property Management reserved the right to terminate the agreement “at any time” by giving the guest 2 months’ written notice.
The guest was required to adhere to the building rules attached to the hotel guest agreement. If the guest was found to be in breach of the rules, Elliott Hotel Property Management reserved the right to terminate the contract with a 7-day’s vacate notice and charge the guest a breach of rules fee of $400.00 + GST per breach.
Further to this, if the weekly accommodation charges were overdue, or there was smoking, or any noise after 10 pm or the premises was sublet, the guest was liable for immediate termination with the deposit being forfeited.
Any smoking, parties, loud music or loud noise of any sort that created disturbance to others incurred a non-refundable $500.00 + GST flat fee.
Elliott Hotel required a security deposit equivalent to 4 weeks’ rent to be charged at the start of the stay.
At the hearing, the landlord confirmed that there were currently around 65 guests. The shortest stay was for 1 month.
The “hotel guest accommodation” and the landlord’s confirmation at the hearing make it clear that the intention of the Elliott Hotel is no longer to provide temporary or transient accommodation for period of ordinarily 28 days or less. In fact, it was the opposite.
Therefore, section 5(1)(k) RTA does not apply.
Under section 78(1)(a) RTA, I declare that none of the exceptions under section 5 RTA apply to Elliott Hotel. Therefore, the RTA applies and Elliott Hotel is required to comply with all the obligations under the RTA as a residential landlord. Substantial claims adjourned
As this order will impact all the tenancies at the Elliott Hotel, I adjourn this case for a period of minimum 2 months to allow for the landlord to lodge an appeal if the landlord wishes to do so.
If the landlord does not lodge an appeal before the next hearing, the tenant’s substantial claims will be heard at the next hearing.
Given the nature and extent of the claims, the next hearing to be held in person at Court.
The parties will be notified in writing by Tenancy Services of the date and time of the next hearing.

Order

The hearing is adjourned.
I find that the tenancy at Room 320, 15 Wellesley Street West, Auckland Central, Auckland 1010 is not excluded from the Residential Tenancies Act 1986 (“RTA”).
A further 4 hours should be allowed for the next hearing of this matter, scheduled before me at the Tenancy Tribunal at Auckland no sooner than two months’ time for a face-to-face hearing.

Reasons

Both parties attended the hearing via videoconference. Employees of Tuscancity Property Management Limited and Icon Hotels Limited attended the videoconference for the landlord.
The tenancy was from 1 November 2024 to 31 March 2025.
On 3 June 2025, the tenant applied for compensation and exemplary damages for various issues including maintenance issues, Healthy Homes Standards issues, misrepresentation of tenancy, fake advertising and non-compliant tenancy agreement. Essentially, the tenant claimed that the premises should come under the jurisdiction of the RTA and not excluded under the pretence of being a hotel.
The landlord argued that the premises was a hotel and that the landlord’s obligations under the RTA did not apply.
In this order, I deal with who the correct respondent should be and whether the RTA applies to this tenancy.

Who is the respondent?

The tenant had made this application against Tuscancity Property Management Limited as the respondent.
“Elliot Hotel” has 70 rooms. Majority of the rooms were studios, but the premises also had 1-bedroom, 2-bedroom and 3-beroom rooms.
Tuscancity Property Management Limited managed all 70 rooms on behalf of Elliott Hotel Property Management. Elliott Hotel was run by Icon Hotels Limited.
Although Tuscancity Property Management Limited acted as the agent for Icon Hotels Limited trading as Elliot Hotel Property Management, as the “Hotel Guest Agreement” was signed by Elliot Hotel Property Management only, there is nothing to create any contractual relationship between the tenant ad Tuscancity Property Management Limited.
Therefore, the respondent’s name has been amended to Icon Hotels Limited trading as Elliott Hotel Property Management. RTA applies unless specifically excluded
I now turn to consider whether the RTA applies to this tenancy or not.
Section 4 of the RTA states that the RTA applies to every tenancy for residential purposes except as specifically provided.
Section 5(1) specifies when the RTA does not apply. The relevant exclusions that the landlord argued were follows: a. The premises was a commercial premises – section 5(1)(a) b. The premises constitute part of any hotel in respect of which an on-licence is in force under the Sale and Supply of Alcohol Act 2012 (“SSAA”) – section 5(1)(j) c. The premises are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and are subject to an agreement that has been entered into for the purposes of providing temporary or transient accommodation that continues to be provided under the agreement – section 5(1)(k)

Was the premises commercial premises?

The landlord argued that the building was a commercial property comprising of hotel apartments, restaurants, retail spaces and Attic Backpacker - that it was not a residential building and therefore does not fall under the jurisdiction of the RTA.
There are commercial tenants within the same building but Elliott Hotel houses residential tenants only. The restaurants, retail spaces and Attic Backpacker do not share the same entrance to Elliott Hotel and are entirely separate.
I do not find that the tenanted premises can be described as commercial premises. The premises constitute part of any hotel with on-licence in force
The landlord presented a copy of the liquor licence issued under the SSAA on 20 September 2018. The licence is due to expire on 20 September 2026.
The landlord claimed that this supported the landlord’s position that the RTA did not apply.
This licence proves that at the time the liquor licence was issued that the premises was permitted to supply alcohol according to the licence through a manager or managers appointed under the SSAA.
At the hearing, a photo of an A4-paper taped onto a wall was presented as evidence. It had the heading “Mini Bar” with a list of beverages, snacks and foods with their respective prices. It was written “please text/call Lee Hoang 021 190 1311 to place an order.”
At the hearing, that number was called but it did not ring at all. The tenant said that number did not work.
When the landlord was asked as to how guests could buy alcohol pursuant to the on-licence, the landlord confirmed that guests were unable to order over the phone. The landlord also confirmed that there was no physical bar that was operating currently. The landlord proposed that the guests could find the hotel employee to order the drink.
The landlord said that there was alcohol in the fridge and that it could legally be sold.
The Icon Hotels Limited employee that attended the hearing said that there were 4 employees that worked for Elliott Hotel.
I do not find the suggestion that the guests could somehow find a hotel employee to order alcohol from is plausible.
The real issue regarding whether section 5(1)(j) exception applies is not whether there is an on-licence for alcohol but whether the premises constitute part of any hotel.
The landlord confirmed that there was no reception area or receptionists for walk-in guests. In fact, Elliott Hotel was not accessible by anyone unless there was a swipe key. There was no housekeeping for the guests. There were no services provided by Elliott Hotel that one could expect from any other hotels.
The phone number listed on Google for Elliott Hotel of 09 308 9334 was disconnected when tried at the hearing.
It was not even possible to book for a room at Elliott Hotel through any popular online hotel booking platforms. The landlord said that they could be booked through Trade Me or Airbnb. It was noted that the premises was advertised under “residential for rent” on Trade Me.
The landlord was asked to what makes Elliott Hotel a real hotel. The landlord said that there was a weekly cleaner for the common area. I do not find that Elliott Hotel is currently operating as a real hotel at all.
Therefore, I do not find that the tenancy premises was a part of a hotel in respect of which an on-licence is in force under SSAA.

Is it intended to provide temporary or transient accommodation?

Section 5(1)(k) RTA makes an exception for premises that is intended to provide for temporary or transient accommodation, ordinarily for period of less than 28 days at a time with accompanying agreement to reflect the temporary or transient nature of the accommodation.
The parties signed a “hotel guest agreement” specifying the term of the agreement from 1 October 2024 to 31 March 2025.
In the agreement, it required “the guest” to notify Elliott Hotel Property Management their intention to vacate with 28 days’ written notice prior to the end date.
Bed linen, towelling, toiletries and vacuum were not provided.
The guest was responsible to maintain the room with a “high degree of cleanliness at all times as to avoid mould/pests/insects/bugs.” A vacuum was available for hire from the management office and the guest was responsible to empty vacuum container after use.
The guest was also responsible for putting rubbish in the appropriate rubbish bins. The bins were located at the back stairwell on the same floor through the fire exit signed door.
No pets were allowed unless approved by property manager.
The guests were required to open his or her own power account with his or her preferred electricity company. It was the guest’s responsibility to close the said account at the end of the term. It was also stipulated that “the guest must provide proof of account set up no more than 1 month after the start date.”
Elliott Hotel Property Management reserved the right to terminate the agreement “at any time” by giving the guest 2 months’ written notice.
The guest was required to adhere to the building rules attached to the hotel guest agreement. If the guest was found to be in breach of the rules, Elliott Hotel Property Management reserved the right to terminate the contract with a 7-day’s vacate notice and charge the guest a breach of rules fee of $400.00 + GST per breach.
Further to this, if the weekly accommodation charges were overdue, or there was smoking, or any noise after 10 pm or the premises was sublet, the guest was liable for immediate termination with the deposit being forfeited.
Any smoking, parties, loud music or loud noise of any sort that created disturbance to others incurred a non-refundable $500.00 + GST flat fee.
Elliott Hotel required a security deposit equivalent to 4 weeks’ rent to be charged at the start of the stay.
At the hearing, the landlord confirmed that there were currently around 65 guests. The shortest stay was for 1 month.
The “hotel guest accommodation” and the landlord’s confirmation at the hearing make it clear that the intention of the Elliott Hotel is no longer to provide temporary or transient accommodation for period of ordinarily 28 days or less. In fact, it was the opposite.
Therefore, section 5(1)(k) RTA does not apply.
Under section 78(1)(a) RTA, I declare that none of the exceptions under section 5 RTA apply to Elliott Hotel. Therefore, the RTA applies and Elliott Hotel is required to comply with all the obligations under the RTA as a residential landlord. Substantial claims adjourned
As this order will impact all the tenancies at the Elliott Hotel, I adjourn this case for a period of minimum 2 months to allow for the landlord to lodge an appeal if the landlord wishes to do so.
If the landlord does not lodge an appeal before the next hearing, the tenant’s substantial claims will be heard at the next hearing.
Given the nature and extent of the claims, the next hearing to be held in person at Court.
The parties will be notified in writing by Tenancy Services of the date and time of the next hearing.

Tenancy Tribunal case 5278299 — Mould & damp at Unit/Flat 320, 15 Wellesley Street West, Auckland Central,

At a glance

Tenancy Tribunal case 5278299 — Mould & damp at Unit/Flat 320, 15 Wellesley Street West, Auckland Central,

At a glance

Claims & awards

Order

Reasons

Who is the respondent?

Was the premises commercial premises?

Is it intended to provide temporary or transient accommodation?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.

Claims & awards

Order

Reasons

Who is the respondent?

Was the premises commercial premises?

Is it intended to provide temporary or transient accommodation?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.