What was Tenancy Tribunal case 5284200 about?

The tribunal order states: Mr Stevenson’s application is struck out for want of jurisdiction.

How much money was awarded in case 5284200?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5284200?

The primary dispute was Cleanliness. Related themes: Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 5284200?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12410218-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5284200 about?

The tribunal order states: Mr Stevenson’s application is struck out for want of jurisdiction.

How much money was awarded in case 5284200?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5284200?

The primary dispute was Cleanliness. Related themes: Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 5284200?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12410218-Tenancy_Tribunal_Order.pdf.

Unit/Flat Ground Floor, 50 Murvale Drive, Bucklands Beach, Tenancy Tribunal Case 5284200 — Cleanliness

Tenantcheck Insights

Reasons

Both parties attended the hearing.

Mr Stevenson has applied for compensation, general damages, exemplary damages, refund of the bond and reimbursement of the filing fee.

The Respondent raised an issue with the Tenancy Tribunal’s jurisdiction to hear Mr Stevenson’s claims.

At the hearing I told the parties I would hear and determine the issue of jurisdiction first, before clarifying the applicant’s substantive claims the be heard at a separate hearing.

The applicant argued that the Residential Tenancies Act 1986 (“RTA”) applies to his relationship with the respondent because: a. He received a series of text messages that he says indicate the respondent intended to create a boarding house agreement as follows: i. The applicant texted the respondent “Do you want to email me a rental agreement?” ii. The respondent replied “We don’t do formal rent agreement. Just email or text send you terms” to which the applicant replies “Ok all good”; iii. The respondent sent a further text message “Hi Neil terms simple. Rent room, price $210, two weeks bond, weekly or fortnightly rent payment in advance, cleaning with 5 people once every 5 weeks upstairs toilet bathroom common area, lawns as when needed men take turns about every weeks summer and every two once every 8 to 12 weeks”. b. Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”; c. The house has 5 bedrooms and an office that could house 5 couples, including the respondent, and a single tenant; and d. The respondent intended the house to be occupied by 6 or more tenants, and had several Uber drivers and other single parent’s coming and going out of the house on a casual short-term basis and at times there were 6 or 7 residents including the landlord; e. The language in the terms of tenancy text messages proves there were at least five people living in the house at any one time, that the applicant was paying rent as a tenant would and that this accurately reflects the respondent’s intention that the applicant rent a room as a boarding house tenant.

For the reasons outlined below, I am satisfied that this is not a boarding house and s 66B of the RTA does not apply and the exception described in s 5(1)(n) of the RTA does apply. Consequently, there is no residential tenancy to which the Act applies. Jurisdiction

Is this a boarding house tenancy?

Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.

The respondent is Mr Owen Joy. He confirmed: a. His family trust owns the property, and he lives in it as a family member named in the Trust documents; b. He lives in the house as his primary place of residence; c. The house has five bedrooms (one downstairs and four upstairs) one small study (upstairs), two toilets (the one with a vanity was downstairs and the other upstairs), one bathroom, one kitchen, one dining room, one formal lounge, one family room and a laundry; d. The large room downstairs the applicant occupied as a flatmate was usually kept aside for the various other family members to reside in as and when they returned from overseas; e. The other three rooms were rented to two men and one of the men’s daughter for a short time; f. He never rented any of the five rooms to couples, always singe people; g. The office was always used as an office and never let as a bedroom; h. He did not have casual people renting rooms, he may have had visitors from time to time that stayed for short periods of time; i. All person residing in the house shared all the common facilities, including but not limited to the main bathroom and the kitchen; j. Flatmates has exclusive use of and occupation of their bedrooms but no other facilities in the house; k. He never gave anyone a flat sharing or flatmate agreement, always a text or email with the same terms as he gave Mr Stevenson; and l. He never intended to run a boarding house at the property and never has done so.

The applicant argued that the respondent was running a boarding house business from the premise and always intended to have at least 6 tenants plus himself living in the property and, this is a boarding house situation and s66B of the RTA applies.

The respondent was clear, this is his home, he usually has one or two other flatmates at any one time but had a three during the applicant’s tenancy due to COVID-19 lockdowns meaning people needed accommodation and accommodation was in short supply. He never intended that more than five people live in the house at any one time and never had more than five people residing in the house during the applicant’s term as a flatmate. He produced an affidavit from one of the other flatmate’s that talks about five people living in the house. Additionally, the text message outlining the terms of the applicant’s residence at the house talks about five people sharing the cleaning and lawn mowing.

The applicant was unable to give me the names and dates of other persons living at the house during his period of residence but claimed he had text messages from them all and could get the information. I explained that today was the date he was required to put his best case forward, in terms of the jurisdictional argument, and no further evidence on this matter would be accepted for filing after the hearing.

I prefer the evidence of the respondent over the applicant’s because: a. The respondent has produced compelling evidence there were no more than five people living in the house at any time the applicant lived there. These flatmates were Mr Joy, Holger Pleiss, Mr Melville and his daughter (for a short time) and Mr Stevenson; b. The applicant did not produce any evidence there were six or more tenants boarding at the premise during the time he live there; c. It is highly improbable that there were six to seven people living in the five- bedroom house at any one time when the respondent’s evidence supports his claim that he never intended to have more than five people living in the house at any one time and never had any couples living at the house; d. The so-called tenancy agreement terms (18 July 2021text message) also suggest there will be five people living at the house and those five people will be sharing the cleaning and lawn mowing. This text message does not show the respondent’s intent to run a boarding house at the premise.

I am satisfied that the respondent never envisaged setting up a boarding house and that s66B of the RTA does not apply to the relationship between it and Mr Stevenson. The law and whether the respondent continue to use the premises principally as their place of residence

Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.”

Prima facie, the premises at 50 Murvale Drive, Bucklands Beach, Auckland (the premise) was used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.

“Tenancy” is defined in section 2 of the Act as follows: “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 ....”.

Section 5 of the Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...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.”

The parties confirmed that for the duration of the tenancy, Mr Joy lived in the house and shared bathroom, toilet, kitchen, dining, lounge, family room and laundry facilities with Mr Stevenson and three other flatmates, and all of these parties had access to and use of the yard. They also confirmed that the house was one single dwelling and the respondent’s areas of the house was not separate to that of the applicant or the other flatmates. The parties description was that the applicant rented a bedroom on the ground level where most of the shared facilities were located and his room was on accessible by him, as was the respondent’s bedroom on the upper level of the house where the shared bathroom, his office and the other three bedrooms were located.

Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”

In reality, the respondent granted the right to the applicant as a flatmate to occupy a bedroom and to share the other household facilities with him and up to 3 other flatmates at any one time.

Section 10 of the Act states: “Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.”

The respondent has proven, on the balance of probabilities, that s 5(1)(n) applies by proving that he continued to use the premises as his principal place of residence during the flatmate’s tenure and that s66B of the RTA does not apply.

Therefore, Mr Stevenson’s claim that he was a tenant that is covered by the provisions of the RTA must fail. Conclusion

The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.

OTHER CLAIMS

Reimbursement of filing fee

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.

Mr Stevenson has not been wholly or substantially successful in his application. Therefore, his application for reimbursement of the filing fee is denied. Name suppression

Mr Stevenson applies for non-publication of his name and identifying details.

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Mr Stevenson has not succeeded in his proceedings.

I consider publication is in the public interest or justified because of the Mr Stevenson’s conduct in these proceedings and during his time as a flatmate of the respondent’s.

Mr Stevenson claim for name suppression is dismissed and publication of his name and identifying details ordered.

Reasons

Both parties attended the hearing.

Mr Stevenson has applied for compensation, general damages, exemplary damages, refund of the bond and reimbursement of the filing fee.

The Respondent raised an issue with the Tenancy Tribunal’s jurisdiction to hear Mr Stevenson’s claims.

At the hearing I told the parties I would hear and determine the issue of jurisdiction first, before clarifying the applicant’s substantive claims the be heard at a separate hearing.

Is this a boarding house tenancy?

Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.”

In reality, the respondent granted the right to the applicant as a flatmate to occupy a bedroom and to share the other household facilities with him and up to 3 other flatmates at any one time.

Therefore, Mr Stevenson’s claim that he was a tenant that is covered by the provisions of the RTA must fail. Conclusion

The Tenancy Tribunal does not have jurisdiction to hear this matter and accordingly the claim is struck out for want of jurisdiction.

OTHER CLAIMS

Reimbursement of filing fee

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.

Mr Stevenson has not been wholly or substantially successful in his application. Therefore, his application for reimbursement of the filing fee is denied. Name suppression

Mr Stevenson applies for non-publication of his name and identifying details.

Mr Stevenson has not succeeded in his proceedings.

I consider publication is in the public interest or justified because of the Mr Stevenson’s conduct in these proceedings and during his time as a flatmate of the respondent’s.

Mr Stevenson claim for name suppression is dismissed and publication of his name and identifying details ordered.

Tenancy Tribunal case 5284200 — Cleanliness at Unit/Flat Ground Floor, 50 Murvale Drive, Bucklands Beach,

At a glance

Tenancy Tribunal case 5284200 — Cleanliness at Unit/Flat Ground Floor, 50 Murvale Drive, Bucklands Beach,

At a glance

Claims & awards

Order

Reasons

Is this a boarding house tenancy?

OTHER CLAIMS

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

Is this a boarding house tenancy?

OTHER CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.