What was Tenancy Tribunal case 5322160 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 5322160?

Tribunal Orders Suppression Of The T…: $28.00 awarded to landlord

What type of tenancy dispute was case 5322160?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5322160?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13003598-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5322160 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 5322160?

Tribunal Orders Suppression Of The T…: $28.00 awarded to landlord

What type of tenancy dispute was case 5322160?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5322160?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13003598-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5322160 — Boarding House

Claims and awards in Tenancy Tribunal application 5322160. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Tribunal orders suppression of the Tenants/Occupants names and identifying details. 2. Zafir Ali and Farisha Dean must i	$28.00		Tribunal orders suppression of the Tenants/Occupants names and identifying details. 2. Zafir Ali and Farisha Dean must i

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants/Occupants names and identifying details.
Zafir Ali and Farisha Dean must immediately pay $28.00 to [Tenants/Occupants names suppressed] as reimbursement of the filing fee.
The parties applications for their respective substantive claims are struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The landlords/owners argue that s 5(1)(n) of the Residential Tenancies Act 1986 (“the Act”) applies and excludes this tenancy from the provisions of the Act.
At the beginning of the hearing, I told the parties I would hear and determine the issue of jurisdiction first, before hearing the substantive claims.
For the reasons outlined below, I am satisfied s 5(1)(n) applies. Consequently, there is no residential tenancy to which the Act applies.

JURISDICTION

Does the Tenancy Tribunal have jurisdiction to hear the landlords and the tenants substantive claims? The law

Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 83 Everglade Drive, Goodwood Heights (the premises) were 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 ....”.
The landlords argued that money was paid by the occupants/tenants in exchange for occupancy rights and not as rent for tenancy. The occupants/tenants argued that they paid rent and had a written residential tenancy agreement with the landlords/owners in exchange for $700 per week rent.
The exceptions to the Act are contained in s 5. 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.”
Under s 5 of the Act, member of the landlord's or owner's family means any person who is related to the landlord or owner by blood, or through marriage, a civil union, or a de facto relationship; or by adoption.
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...”
The landlords/owners granted tenancy of the premises to the occupants/tenants, as members of their family. The landlords/owners kept some of their possessions at the premises but did not live at the premise at any time during the tenancy/occupation.
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.”
So, in the present case, the landlords/owners must prove, on the balance of probabilities, that s 5(1)(n) applies. This requires the landlords/owners to prove that Mohammed Zameer Ali and Aaeza Naaz are the landlords and owners of the premise, and that [Tenants/Occupants names suppressed] are members of the landlords or owners family.
Section 11 (1) and (2) of the Act states: (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a)the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b)the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2)Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act.
Section 11 has the effect of invalidating the written tenancy agreement signed by the parties if the landlords/owners prove on the balance of probabilities that s5(1)9n) of the Act applies. Were the occupants/tenants members of the landlord's or owner's family
There was no dispute between the parties that Mr Mohammed Zameer Ali and Ms Aaeza Naaz are the landlords and owners of the premise, nor that [Tenants/Occupants names suppressed] is Mr Mohammed Zameer Ali and Ms [Tenants/Occupants names suppressed] is Mr Mohammed Zameer Ali’s sister- in-law by marriage. The parties also confirmed Ms Aaeza Naaz is Mr Mohammed Zameer Ali’s wife and [Tenants/Occupants names suppressed] sister-in-law and is related to the tenants/occupants by marriage.
The occupants/tenants argue that they resided in the premises from around 2 October 2023 to 15 September 2024 under a residential tenancy agreement signed by the parties, and they were tenants as they paid rent as well as outgoings. They also supplied free labour to carry out the renovations/repairs and paid for materials for those renovations/repairs.
The landlords/owners argue: aThe Act does not apply to the tenants/occupants occupation of the premises because s 5(1)(n) of the Act applies. bThere is no residential tenancy, and therefore, no jurisdiction for the Tenancy Tribunal to hear this matter. cBoth occupants are members of the landlord's or owner's family, invoking the s 5 exclusion.
The parties agreed at the end of the hearing that [Tenants/Occupants names suppressed] are members of the landlords or owners family, as required for the section 5(1)(n) exception in the Act to apply. Consequently, the written tenancy agreement is invalid as it does not accurately reflect the nature of the relationship between the parties and there is no evidence the landlords/owners expressly agreed to contract back into any parts of the Act.
Therefore, the occupants/tenants claim that they were tenants that are covered by the provisions of the Act must fail. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear these matters and accordingly the claim is struck out for want of jurisdiction. 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.
Because the tenants have not wholly or substantially succeeded with their claims their application for reimbursement of the filing fee is dismissed.
Because the landlords have substantially succeeded in their claims their application for reimbursement of the filing fee is granted. Name suppression
The tenants apply for non-publication of their names 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.
The tenants have not wholly or substantially succeeded in their proceedings. I do not consider publication is in the public interest or justified because of the tenants conduct or any other circumstances of the case.
Non-publication is ordered.

Claims and awards in Tenancy Tribunal application 5322160. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Tribunal orders suppression of the Tenants/Occupants names and identifying details. 2. Zafir Ali and Farisha Dean must i	$28.00		Tribunal orders suppression of the Tenants/Occupants names and identifying details. 2. Zafir Ali and Farisha Dean must i

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants/Occupants names and identifying details.
Zafir Ali and Farisha Dean must immediately pay $28.00 to [Tenants/Occupants names suppressed] as reimbursement of the filing fee.
The parties applications for their respective substantive claims are struck out for want of jurisdiction.

Reasons

Both parties attended the hearing.
The landlords/owners argue that s 5(1)(n) of the Residential Tenancies Act 1986 (“the Act”) applies and excludes this tenancy from the provisions of the Act.
At the beginning of the hearing, I told the parties I would hear and determine the issue of jurisdiction first, before hearing the substantive claims.
For the reasons outlined below, I am satisfied s 5(1)(n) applies. Consequently, there is no residential tenancy to which the Act applies.

JURISDICTION

Does the Tenancy Tribunal have jurisdiction to hear the landlords and the tenants substantive claims? The law

Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 83 Everglade Drive, Goodwood Heights (the premises) were 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 ....”.
The landlords argued that money was paid by the occupants/tenants in exchange for occupancy rights and not as rent for tenancy. The occupants/tenants argued that they paid rent and had a written residential tenancy agreement with the landlords/owners in exchange for $700 per week rent.
The exceptions to the Act are contained in s 5. 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.”
Under s 5 of the Act, member of the landlord's or owner's family means any person who is related to the landlord or owner by blood, or through marriage, a civil union, or a de facto relationship; or by adoption.
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...”
The landlords/owners granted tenancy of the premises to the occupants/tenants, as members of their family. The landlords/owners kept some of their possessions at the premises but did not live at the premise at any time during the tenancy/occupation.
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.”
So, in the present case, the landlords/owners must prove, on the balance of probabilities, that s 5(1)(n) applies. This requires the landlords/owners to prove that Mohammed Zameer Ali and Aaeza Naaz are the landlords and owners of the premise, and that [Tenants/Occupants names suppressed] are members of the landlords or owners family.
Section 11 (1) and (2) of the Act states: (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a)the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b)the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2)Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act.
Section 11 has the effect of invalidating the written tenancy agreement signed by the parties if the landlords/owners prove on the balance of probabilities that s5(1)9n) of the Act applies. Were the occupants/tenants members of the landlord's or owner's family
There was no dispute between the parties that Mr Mohammed Zameer Ali and Ms Aaeza Naaz are the landlords and owners of the premise, nor that [Tenants/Occupants names suppressed] is Mr Mohammed Zameer Ali and Ms [Tenants/Occupants names suppressed] is Mr Mohammed Zameer Ali’s sister- in-law by marriage. The parties also confirmed Ms Aaeza Naaz is Mr Mohammed Zameer Ali’s wife and [Tenants/Occupants names suppressed] sister-in-law and is related to the tenants/occupants by marriage.
The occupants/tenants argue that they resided in the premises from around 2 October 2023 to 15 September 2024 under a residential tenancy agreement signed by the parties, and they were tenants as they paid rent as well as outgoings. They also supplied free labour to carry out the renovations/repairs and paid for materials for those renovations/repairs.
The landlords/owners argue: aThe Act does not apply to the tenants/occupants occupation of the premises because s 5(1)(n) of the Act applies. bThere is no residential tenancy, and therefore, no jurisdiction for the Tenancy Tribunal to hear this matter. cBoth occupants are members of the landlord's or owner's family, invoking the s 5 exclusion.
The parties agreed at the end of the hearing that [Tenants/Occupants names suppressed] are members of the landlords or owners family, as required for the section 5(1)(n) exception in the Act to apply. Consequently, the written tenancy agreement is invalid as it does not accurately reflect the nature of the relationship between the parties and there is no evidence the landlords/owners expressly agreed to contract back into any parts of the Act.
Therefore, the occupants/tenants claim that they were tenants that are covered by the provisions of the Act must fail. Conclusion
The Tenancy Tribunal does not have jurisdiction to hear these matters and accordingly the claim is struck out for want of jurisdiction. 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.
Because the tenants have not wholly or substantially succeeded with their claims their application for reimbursement of the filing fee is dismissed.
Because the landlords have substantially succeeded in their claims their application for reimbursement of the filing fee is granted. Name suppression
The tenants apply for non-publication of their names 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.
The tenants have not wholly or substantially succeeded in their proceedings. I do not consider publication is in the public interest or justified because of the tenants conduct or any other circumstances of the case.
Non-publication is ordered.

Tenancy Tribunal case 5322160 — Boarding House

At a glance

Claims & awards

Tenancy Tribunal case 5322160 — Boarding House

At a glance

Claims & awards

Dismissed claims

Order

Reasons

JURISDICTION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Dismissed claims

Order

Reasons

JURISDICTION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions