What was Tenancy Tribunal case 5345102 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5345102?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5345102?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5345102?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12694915-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5345102 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5345102?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5345102?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5345102?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12694915-Tenancy_Tribunal_Order.pdf.

67 Whytehead Crescent, Saint Heliers, Auckland 1071 Tenancy Tribunal Case 5345102 — Cleanliness

Order

The application is dismissed.

Reasons

[The party], [The party] and [The party] moved to New Zealand with their sons to give them a good education. They wanted their sons to attend Selwyn College, which is located in Kohimarama, Auckland. To do this, they needed to live at an address within the school’s “home zone,” which the tenancy address is.
On 28 June 2024, [The party] and [The party] signed a tenancy agreement with the landlord for the premises at 67 Whytehead Crescent, Saint Heliers, Auckland 1071. The tenancy was a fixed-term tenancy from 19 July 2024 – 24 July 2025. [The party] and [The party]’s sons, Xu Yan and Yiwen Shi, are named as additional residents on the tenancy agreement. [The party] and his lived at the address but are not recorded on the tenancy agreement.
The tenancy ended on 24 July 2025. Unfortunately, [The party] passed away before the tenancy ended.
Following the end of the tenancy, a dispute arose in relation to the bond. A bond of $4,240.00 was paid at the beginning of the tenancy. Mr Wang claims that when the landlord completed the final inspection, the only issue noted was that four lightbulbs needed to be replaced. Mr Wang claims the landlord later sought to deduct the following expenses from the bond: a. $690.00 for cleaning. b. $230.00 to replace 10 lightbulbs.
Mr Wang claims he and Mr Yan disagreed with these disbursements however, Mr Yan subsequently changed his mind and allowed $920.00 to be deducted from the bond in favour of the landlord. A balance of $3,320.00 remains with the Bond Centre. Mr Wang wants to challenge this dispersal of the bond. He also claims that his quiet enjoyment was breached during the tenancy, due to extensive garden work that was completed at the premises.
The first hurdle that Mr Wang must overcome is to establish that he has standing to bring these proceedings. The issues I must determine is whether Mr Wang is a tenant. Standard of proof
Mr Wang must prove that he is a tenant on the balance of probabilities. This means that Mr Wang must establish that what he is claiming is more likely than not. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Katipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit of not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. I must consider all the evidence presented (including oral evidence at the hearing). I must weigh this evidence to decide what is more likely. Is [The party] a tenant? The law
The Tribunal has jurisdiction to determine any dispute that: 1 a. Exists between a landlord and a tenant; and b. Relates to any tenancy to which the Residential Tenancies Act 1986 (RTA) applies.
The RTA applies to all tenancies for residential purposes, except as specifically provided. 2
A landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement. A tenant is the grantee of the tenancy. The definition of “tenant” under the RTA includes: 3 a. A prospective tenant. b. A former tenant. c. A lawful successor in title of a tenant to the premises. d. The personal representative of a deceased tenant. e. An agent of a tenant.
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. 4 Analysis
The issue to be determined is whether the landlord gave, and Mr Wang received, the right to occupy the premises in consideration for rent. Mr Wang is not named as a tenant on the tenancy agreement however, this is not determinative. The Tribunal considers the substance of the agreement between the parties, not just the written agreement.
Mr Wang paid his portion of the rent ($325.00) directly to the landlord. He also lived in the premises and participated in the final inspection. These factors weigh in favour of Mr Wang being considered a tenant however, I find the balance of 1 Residential Tenancies Act 1986, section 77(1). 2 Residential Tenancies Act 1986, section 4. 3 Residential Tenancies Act 1986, section 2. 4 Residential Tenancies Act 1986, section 2. the evidence more strongly supports the conclusion that he was a lawful occupier of the premises, not a tenant.
Mr Wang gave evidence that he, [The party] and [The party] arrived in New Zealand on 18 July 2024. Mr Wang claims that Mr Yan and Mr Shi arrived in the morning, and he arrived at nighttime. Mr Wang claims that Mr Yan and Mr Shi signed the tenancy agreement shortly after their arrival and the only reason he did not sign it is because he arrived later.
The tenancy agreement records that Mr Yan and Mr Shi signed the agreement electronically on 28 June 2024. That is approximately three weeks before they arrived in New Zealand. The date of Mr Yan and Mr Shi’s signatures contradicts the evidence given by Mr Wang. If Mr Yan and Mr Shi were able to sign the tenancy agreement electronically on 28 June 2024, there is no reason why Mr Wang could not have done the same. The fact that he did not supports the landlord’s claim that Mr Wang was not involved in the application process for the tenancy and the landlord did not intend for him to be a tenant.
The issue of whether Mr Wang was a tenant or lawful occupier of the premises was discussed between the parties in late July 2024. Mr Wang was living in the premises at the time and needed to apply for a bank card. The bank required proof of his address. Mr Wang provided them with a copy of the tenancy agreement, which was rejected, because it did not record his name. The following messages, which were interpreted by the interpreter at the hearing, were then exchanged between the parties: Mr Wang: My name is not in the tenancy agreement and my name in passport has been supplied to you. Now documents should be issued to the bank and pass the bank’s account opening review. Landlord: That is because you have not applied for this house. The supply of passport only said to stay or reside, it’s not applied to be written in the tenancy agreement. Mr Wang: Possibly at the time it was applied by the other two parents and then arranged me to join to rent the place together. Now the bank wants proof. Can you supply? You don’t need to go that far to amend the tenancy agreement. I only need to get my bank card done. You just need to prove that I’m really residing in this house.
The landlord subsequently provided a letter to Mr Wang to give to the bank. It is dated 31 July 2024 and states: I, Daniel Zhang, the property manager, acknowledge that Mr [The party] resides at 67 Whytehead Crescent Saint Heliers Auckland with our tenants Mr [The party] and [The party] since 19 July 2024.
This discussion was the perfect opportunity for a variation to the tenancy agreement to be completed to include Mr Wang as a tenant, if this is what the parties intended the nature of their relationship to be. Instead, the landlord confirms that Mr Wang’s passport was only provided to support an application to live in the premises, not to become a tenant. Mr Wang does not dispute this and states that the tenancy agreement does not need to be amended, he only needs confirmation from the landlord that he lives at the premises. In the landlord’s letter, a clear distinction is made between Mr Wang who “resides” at the premises and Mr Yan and Mr Shi who are the tenants. All of this evidence convinces me on the balance of probabilities that there was never an intention to create a legal relationship of landlord and tenant between the parties.
The way in which the bond was paid to the landlord also supports this conclusion. Mr Wang gave evidence they he, Mr Yan and Mr Shi contributed equally towards the bond, but accepts it was paid by either Mr Yan or Mr Shi directly to the landlord. This supports the landlord’s claim that they only communicated with Mr Yan and Mr Shi in the lead up to the tenancy, not Mr Wang. The landlord did not know about Mr Wang until later on when Mr Yan and Mr Shi asked permission for Mr Wang to live in the property with them.
Mr Wang gave evidence that he was treated as a tenant by Mr Yan and Mr Shi. By this, Mr Wang means that he was treated by Mr Yan and Mr Shi as their equal. How Mr Yan and Mr Shi treated Mr Wang is separate from and different to the relationship between Mr Wang and the landlord. The fact that Mr Yan and Mr Shi might have considered Mr Wang to be a tenant cannot be transitted to the landlord.
The weight of the evidence convinces me on the balance of probabilities that Mr Yan and Mr Shi were the only people who applied for the tenancy and with whom the landlord intended to have a legal relationship of landlord and tenant. Mr Wang was permitted to reside in the premises, but only as a flatmate of Mr Yan and Mr Shi. Whilst Mr Wang paid his portion of the rent directly to the landlord, I find this was done on behalf of the tenants, Mr Yan and Mr Shi.
For these reasons, I am not convinced on the balance of probabilities that Mr Wang was a tenant. Has Mr Wang been appointed by a lawful successor in title to the late [The party]?
The definition of tenant includes a lawful successor in title of a tenant to the premises. Mr Wang claims that Yiwen Shi is the heir of the late [The party]. Therefore, Mr Wang claims that Yiwen Shi is the lawful successor in title of Jun Shi. Because Yiwen Shi has appointed Mr Wang to act as a representative in these proceedings, Mr Wan claims he has standing.
A tenancy cannot be inherited under the RTA. The most common situation in which a person becomes a tenant by way of a lawful succession in title, is where the tenancy is assigned to a new tenant with the consent of the landlord. When a tenant dies, the representative of their estate, which is usually the executor or administrator, can file or respond to proceedings before the Tribunal.
Because the RTA does not permit tenancies to be inherited, Mr Wang’s claim that Yiwen Shi is the lawful successor in title to the tenancy of the late [The party] is incorrect.
Mr Wang is not able to bring these proceedings on behalf of Yiwen Shi. Has Mr Wang been appointed by a personal representative of the late [The party]?
The definition of tenant includes a personal representative of the deceased. Mr Wang claims he has authority from [The party]’s son, Yiwen Shi, and widow, Xiaoling Yin, to bring these proceedings. The difficulty for Mr Wang is that no evidence confirming Yiwen Shi or Xioling Yin are the legal representatives of the estate of [The party] was submitted.
In cases where proceedings are filed in the Tribunal on behalf of a deceased tenant or landlord, the Tribunal usually requires: a. A copy of the death certificate; and b. A copy of the grant of probate or letters or administration from the High Court confirming the executor or administrator of the deceased’s estate.
This evidence confirms who the legal representative of the deceased is.
In this case, no death certificate, grant of probate or letters of administration were submitted. Mr Wang claims that the legal process is different in China, which is the country in which Mr Shi’s estate was dealt with. If this is true, expert evidence is required to confirm the process by which a representative of a deceased person is determined in China, as well as confirmation of who that person is in respect of the estate of June Shi.
Insufficient evidence was submitted to convince me that either Yiwen Shi or Xioling Yin are the legal representatives of the estate of [The party]. Therefore, Mr Wang’s application to bring these proceedings on their behalf is dismissed. Conclusion
I am not convinced on the balance of probabilities that Mr Wang is a tenant.
The Tribunal does not have jurisdiction to determine this dispute and the application is dismissed.

Tenancy Tribunal case 5345102 — Cleanliness at 67 Whytehead Crescent, Saint Heliers, Auckland 1071

At a glance

Claims & awards

Tenancy Tribunal case 5345102 — Cleanliness at 67 Whytehead Crescent, Saint Heliers, Auckland 1071

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions