How much money was awarded in case 5304700?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5304700?

The primary dispute was Rent arrears. Related themes: Boarding House.

Where can I read the official tribunal order for case 5304700?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12513833-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 5304700?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5304700?

The primary dispute was Rent arrears. Related themes: Boarding House.

Where can I read the official tribunal order for case 5304700?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12513833-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5304700 — Rent arrears

Q: What was Tenancy Tribunal case 5304700 about?

The tribunal order states: The Tribunal orders suppression of the names and identifying details until a final

Order

The Tribunal orders suppression of the names and identifying details until a final order is made.
The Tenancy Tribunal has jurisdiction to hear the application.
The hearing of the tenant’s application is adjourned.
A further 2 hours should be allowed for the next hearing of this matter, scheduled before me on the next available date.
If [The landlord/s] has a claim against the bond he must file an application with Tenancy Services by 13 October 2025.
If either party intends to produce any additional documents at the next hearing, they must email the Tribunal at least three days before the next hearing and cc email the other party at the same time.
Any additional documents should be sent to this email address: huttvalleytt@justice.govt.nz

Reasons

Both parties attended the hearing.
This is a disagreement between the owner of a nine bedroom house and a “flatmate” who lived there for around four months. The flatmate wants to bring a claim in the Tenancy Tribunal for his bond. The owner’s position is that the Residential Tenancies Act 1986 (RTA) does not apply because he lives in the house with some of his family and not more than five flatmates at any one time. The parties signed a detailed, three page flatmate agreement. The questions I have to decide after the first hearing include: • Was the house being used principally as a family home? • Was this emergency housing? • Does the RTA apply to this living situation? • What happens next?
The preliminary issue is whether the Tribunal can hear the claim. Section 77(1) 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. Residential premises means any premises used or intended for occupation by any person as a place of residence. Tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. In this case the flatmate lived in a residential dwelling and paid $330 a week in rent. He paid a bond and two weeks rent in advance. He had the exclusive use of a bedroom. That sounds like a tenancy.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 5(1)(n) provides that the RTA is excluded 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 exclusion in 5(1)(n) was considered by the District Court in Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36. The Judge in that decision considered tenancy premises where the owner lived in one bedroom and the other eight bedrooms were rented out to other people. Everyone shared the use of the kitchen, lounge, bathroom etc – the common areas. The focus in Musson was on the principal residence point. The issue was not whether this was the landlord’s main residence, but whether this house was being used mainly as a home or being used as a business. The Court held that the exclusion at section 5(1)(n) RTA did not apply because the premises was not being used principally as the landlord’s residence.
The Court in Musson found the relevant question in cases like this is whether the principal use of these premises is as a place of residence by the landlord? The Judge said – [39] ... So the question to be asked is - Is the principal use of these premises as a place of residence by the landlord? [ 40] Put in this way, the clear answer, on the cases of both sides, is "no". Mr Musson occupied one bedroom out of nine, and shared the common area equally with the other occupants. Far from Mr Musson's use of the property being "principal", it was commensurate with that of the other occupants. [ 41] I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bedsitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.
In contrast, there is the recent High Court decision of Cavanagh v Jackson [2025] NZHC 1491, which found that section 5(1)(n) RTA did not apply to a living situation where a landlord lived in a three bedroom house with a flatmate. She rented the room to get some money to help pay the bills. The flatmate had the exclusive use of a bedroom and shared access to the other parts of the house. The High Court considered the extent of shared facilities, and the definition of “premises”, and considered the intention in that case was to have a flatting arrangement.
The owner in this case said most of the house is used for family, but he was elusive when answering questions about his use of the house. He said he had the exclusive the main bedroom. His son and three grandchildren use some of the bedrooms. Some rooms were used for storage. Use of the kitchen, bathroom, and toilet was shared. There is a lounge that could be used by the flatmates, but is not usually used by the flatmates because they have WIFI in their bedrooms.
The owner was very clear that he signed a flatmate agreement, that he is the head tenant, and that he only ever has a maximum of five people at a time living in the house as flatmates. He said usually there are three or four flatmates paying rent, and his family. He said he does not advertise and gets flatmates by word of mouth, or through friends. The owner said he was previously in the Tenancy Tribunal where he was told the RTA did not apply if he only had five flatmates.
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. In this case that is the owner of the house. The owner said he is not running a boarding house because he does not have six or more people living there. In response to my questioning as to whether the house was being used as a family home or a business, the owner said it was a family home because his family lives there with him and he does not charge them rent.
In reply, the flatmate said he never saw the son or grandchildren in the house and there were six flatmates living in the house during the time he lived there. He said the landlord advertises and gets referrals from WINZ. In fact, WINZ made this referral and paid the bond. He said Room 5, the room he had the exclusive use of, now has a two people in it.
I am not persuaded by the landlord’s submission that the RTA does not apply. The letting of rooms to flatmates does not seem small scale, like it was in Cavanagh. It seems most likely to me the principal use of the house is as a business. To start with, WINZ refers people to the owner and sometimes pays a bond on their behalf. The owner provides a three page business like contract which outlines the costs, the many rules of the house, the charges if the flatmate, for example, loses his keys, and the rules for terminating the flatmate agreement. The living situation also seems very different from the living situation described back in 2017, when the Tenancy Tribunal found it did not have jurisdiction because of section 5(1)(n) RTA. I find that the exclusion at 5(1)(n) RTA does not apply to this living arrangement.

Was this emergency housing?

There is another exclusion at section 5(1)(y) RTA which provides that the RTA does not apply if the premises are used to provide emergency or transitional housing, and the rent is paid by funding specifically for emergency housing under section 101 of the Social Security Act 2018, and/or the provider of the accommodation is a person prescribed by regulations. The landlord said this exclusion does not apply and I am inclined to agree because WINZ has only paid the bond, and tenants usually know when they are in receipt of funding for emergency housing. I find this exclusion does not apply.

Does the RTA apply to this living situation?

I find I have the jurisdiction to hear the flatmate’s claim. From now the flatmate will be called the tenant and the owner will be called the landlord.

What happens next?

The parties will be notified in writing by Tenancy Services of the date and time of the next hearing.
I have suppressed the names and details until a final order is made and suppression can be properly considered.
If the landlord has claims he wants to bring against the tenant, such as for the door or for rent arrears, the landlord must file an application with Tenancy Services within the week.

Order

The Tribunal orders suppression of the names and identifying details until a final order is made.

The Tenancy Tribunal has jurisdiction to hear the application.

The hearing of the tenant’s application is adjourned.

A further 2 hours should be allowed for the next hearing of this matter, scheduled before me on the next available date.

If [The landlord/s] has a claim against the bond he must file an application with Tenancy Services by 13 October 2025.

If either party intends to produce any additional documents at the next hearing, they must email the Tribunal at least three days before the next hearing and cc email the other party at the same time.

Any additional documents should be sent to this email address: huttvalleytt@justice.govt.nz

Reasons

Both parties attended the hearing.

This is a disagreement between the owner of a nine bedroom house and a “flatmate” who lived there for around four months. The flatmate wants to bring a claim in the Tenancy Tribunal for his bond. The owner’s position is that the Residential Tenancies Act 1986 (RTA) does not apply because he lives in the house with some of his family and not more than five flatmates at any one time. The parties signed a detailed, three page flatmate agreement. The questions I have to decide after the first hearing include: • Was the house being used principally as a family home? • Was this emergency housing? • Does the RTA apply to this living situation? • What happens next?

The preliminary issue is whether the Tribunal can hear the claim. Section 77(1) 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. Residential premises means any premises used or intended for occupation by any person as a place of residence. Tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. In this case the flatmate lived in a residential dwelling and paid $330 a week in rent. He paid a bond and two weeks rent in advance. He had the exclusive use of a bedroom. That sounds like a tenancy.

Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 5(1)(n) provides that the RTA is excluded 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 exclusion in 5(1)(n) was considered by the District Court in Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36. The Judge in that decision considered tenancy premises where the owner lived in one bedroom and the other eight bedrooms were rented out to other people. Everyone shared the use of the kitchen, lounge, bathroom etc – the common areas. The focus in Musson was on the principal residence point. The issue was not whether this was the landlord’s main residence, but whether this house was being used mainly as a home or being used as a business. The Court held that the exclusion at section 5(1)(n) RTA did not apply because the premises was not being used principally as the landlord’s residence.

The Court in Musson found the relevant question in cases like this is whether the principal use of these premises is as a place of residence by the landlord? The Judge said – [39] ... So the question to be asked is - Is the principal use of these premises as a place of residence by the landlord? [ 40] Put in this way, the clear answer, on the cases of both sides, is "no". Mr Musson occupied one bedroom out of nine, and shared the common area equally with the other occupants. Far from Mr Musson's use of the property being "principal", it was commensurate with that of the other occupants. [ 41] I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bedsitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.

In contrast, there is the recent High Court decision of Cavanagh v Jackson [2025] NZHC 1491, which found that section 5(1)(n) RTA did not apply to a living situation where a landlord lived in a three bedroom house with a flatmate. She rented the room to get some money to help pay the bills. The flatmate had the exclusive use of a bedroom and shared access to the other parts of the house. The High Court considered the extent of shared facilities, and the definition of “premises”, and considered the intention in that case was to have a flatting arrangement.

The owner in this case said most of the house is used for family, but he was elusive when answering questions about his use of the house. He said he had the exclusive the main bedroom. His son and three grandchildren use some of the bedrooms. Some rooms were used for storage. Use of the kitchen, bathroom, and toilet was shared. There is a lounge that could be used by the flatmates, but is not usually used by the flatmates because they have WIFI in their bedrooms.

The owner was very clear that he signed a flatmate agreement, that he is the head tenant, and that he only ever has a maximum of five people at a time living in the house as flatmates. He said usually there are three or four flatmates paying rent, and his family. He said he does not advertise and gets flatmates by word of mouth, or through friends. The owner said he was previously in the Tenancy Tribunal where he was told the RTA did not apply if he only had five flatmates.

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. In this case that is the owner of the house. The owner said he is not running a boarding house because he does not have six or more people living there. In response to my questioning as to whether the house was being used as a family home or a business, the owner said it was a family home because his family lives there with him and he does not charge them rent.

In reply, the flatmate said he never saw the son or grandchildren in the house and there were six flatmates living in the house during the time he lived there. He said the landlord advertises and gets referrals from WINZ. In fact, WINZ made this referral and paid the bond. He said Room 5, the room he had the exclusive use of, now has a two people in it.

I am not persuaded by the landlord’s submission that the RTA does not apply. The letting of rooms to flatmates does not seem small scale, like it was in Cavanagh. It seems most likely to me the principal use of the house is as a business. To start with, WINZ refers people to the owner and sometimes pays a bond on their behalf. The owner provides a three page business like contract which outlines the costs, the many rules of the house, the charges if the flatmate, for example, loses his keys, and the rules for terminating the flatmate agreement. The living situation also seems very different from the living situation described back in 2017, when the Tenancy Tribunal found it did not have jurisdiction because of section 5(1)(n) RTA. I find that the exclusion at 5(1)(n) RTA does not apply to this living arrangement.

Was this emergency housing?

There is another exclusion at section 5(1)(y) RTA which provides that the RTA does not apply if the premises are used to provide emergency or transitional housing, and the rent is paid by funding specifically for emergency housing under section 101 of the Social Security Act 2018, and/or the provider of the accommodation is a person prescribed by regulations. The landlord said this exclusion does not apply and I am inclined to agree because WINZ has only paid the bond, and tenants usually know when they are in receipt of funding for emergency housing. I find this exclusion does not apply.

Does the RTA apply to this living situation?

I find I have the jurisdiction to hear the flatmate’s claim. From now the flatmate will be called the tenant and the owner will be called the landlord.

What happens next?

The parties will be notified in writing by Tenancy Services of the date and time of the next hearing.

I have suppressed the names and details until a final order is made and suppression can be properly considered.

If the landlord has claims he wants to bring against the tenant, such as for the door or for rent arrears, the landlord must file an application with Tenancy Services within the week.

Tenancy Tribunal case 5304700 — Rent arrears

At a glance

Claims & awards

Tenancy Tribunal case 5304700 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Was this emergency housing?

Does the RTA apply to this living situation?

What happens next?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Was this emergency housing?

Does the RTA apply to this living situation?

What happens next?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions