What was Tenancy Tribunal case 5389006 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 5389006?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5389006?

The primary dispute was Cleanliness. Related themes: Boarding House.

Where can I read the official tribunal order for case 5389006?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13058521-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5389006 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 5389006?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5389006?

The primary dispute was Cleanliness. Related themes: Boarding House.

Where can I read the official tribunal order for case 5389006?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13058521-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5389006 — Cleanliness

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s and tenant’s names and identifying details.
The Tribunal has jurisdiction to hear the dispute.
Both applications will now be scheduled for hearing.

Reasons

Both parties attended the hearing on 22 January 2026 by videoconference. The purpose of the hearing was to consider whether the Tribunal has jurisdiction to hear the dispute.
Both parties have made applications to the Tribunal. However, the landlord has also sought a determination whether the Tribunal has jurisdiction.
There was no written tenancy agreement or flat-sharing agreement. The tenant rented a room in a 5-bedroom property owned by the landlord from 22 June to 9 November 2025 and paid weekly rent of $220.00. A bond of $440.00 was also paid. The only terms in writing were those mentioned in text messages prior to the tenant moving in. These were that the agreement could be terminated on two weeks’ notice, and reasonable outgoings were included.
I consider that this mainly verbal arrangement was sufficient to create a “tenancy”, as defined under section 2(1) of the Residential Tenancies Act 1986 (the Act).
The Tribunal’s jurisdiction is excluded if the premises 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 (section 5(1)(n) of the Act).
The public policy reason behind this exclusion, as I understand it, was to ensure that landlords who share their homes with a rent-paying boarder or lodger are not subject to the Act. In other words, non-commercial and small-scale letting arrangements are excluded.
The landlord-owner says that the tenancy address is their primary home, is where most of their belongings are stored, and where their mail is delivered. The situation is made more complicated by the landlord having moved to Wellington (where the landlord and her husband are renting) in September 2025 and by the renting out of various rooms. The landlord says they have not decided whether to stay in Wellington or move back to Auckland.
The landlord was living at the premises prior to the tenancy and during this time two other rooms were rented out. When the landlord moved to Wellington, they rented out a further room. Downstairs there is a bedroom with ensuite, a separate toilet, living room and kitchen. The landlord said the downstairs had its own entry. Upstairs there are four bedrooms, and the tenant said there was also a common area. The only kitchen is downstairs.
The landlord said the premises were rented out to the tenant, two other men in the downstairs area, and another tenant who was joined by his wife for a time. The landlord would only rent out two or three rooms and had not rented out more than three rooms at any time. The tenant said that three people were living at the premises during his first month (this may be three people in addition to the tenant).
There was different evidence about how much time the landlord spent at the property. The tenant said the landlord was only living at the premises for 2-3 weeks in the middle of his tenancy, in addition they both made visits. The landlord said she returned to Auckland with her husband in September and on another occasion, in October, she returned to discuss the issues with the flooring and cleaning which led to these proceedings. Her husband returned to Auckland in November.
Following the hearing the landlord provided some bank statements. These suggest that the landlord was away when the tenant moved in but was in Auckland from 26 June to 2 August and from 7 August until they left for Wellington in September 2025. Despite the Tribunal’s request for confirmation of the exact date the landlord moved to Wellington, this has not been provided. Relevant Law
In Musson v Dobrisek (CIV-2006-032-36, 5 May 2006, Judge Broadmore) the District Court said that the word “principally” in section 5(1)(n) of the Act referred to the main use of the premises, not to the relative duration of the landlord’s occupation of the premises compared to somewhere else (paragraph 38).
The question to be asked was whether the principal use of the premises was as a place of residence by the landlord (paragraph 39): 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(1)(n)] appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed-sitting 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.
I note that Musson v Dobrisek was decided prior to the introduction of Part 2A of the Act in 2010 (boarding house tenancies). A “boarding house” means residential premises containing one or more boarding rooms with facilities for communal use by the tenants, that are occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time. A “boarding house tenancy” means a residential tenancy in a boarding house that is intended to last for 28 days or more, and which grants the tenant exclusive rights to occupy sleeping quarters and the right to shared use of the facilities.
The evidence does not show that the premises have ever been occupied by 6 tenants or that the landlord intended to rent the premises to so many occupants at any one time. The number of occupants fluctuated, and the arrangements were casual. Analysis
The wording of section 5(1)(n) of the Act implies that, for the exclusion to apply, premises which have been used principally as the landlord’s place of residence prior to the tenancy must continue to be so used after the tenancy starts. For a large proportion of the tenancy the premises were not being used by the landlord as a place of residence. They retained their own room for their belongings, but otherwise the premises were occupied and utilised by their tenants with occasional visits by the landlord. The premises may still represent “home” for the landlord, but during the tenancy it was not always being used mainly as their place of residence.
The other factor which I consider favours the application of the Act, to some degree, is the commercial nature of the arrangements. If the landlord had rented out one, or maybe two bedrooms in their house to one or two flatmates, who continued to live at the property in the landlord’s absence, it would be much easier to view the arrangement as a lodging or boarder type situation, i.e., as being a small-scale letting. When the landlord moved to Wellington, they rented out three of the bedrooms and retained only one room for themselves with another room left empty.
Further, it does not appear that the move to Wellington was temporary, in other words, this is not a case of a landlord who has to travel for work but routinely comes back to the same premises as their primary residence. The move to Wellington may or may not be permanent and appears to be open-ended. The landlord is still living in Wellington and only visits the premises.
Even if the landlords had been living at the premises throughout the tenancy, it is not obvious that section 5(1)(n) would apply. If that were so the premises, while being the landlord’s primary - indeed only - residence, would still be used at least as much to provide accommodation for the tenants as for the landlord. However, the analysis would need to go further. In Khumalo & Another v Ward-Kotze [2022] NZTT 4407308, 4404201, I stated (at paragraphs 39-41): Section 5(1)(n) is a difficult provision, as cases like Muralidharan show. In my view, the approach adopted in Musson should now be distinguished in view of Part 2A of the Act relating to boarding houses. It is evident that the reference in Musson to landlord and tenant relationships which are “primarily commercial” reflected an understandable concern that section 5(1)(n) should not be used to exclude from the protection of the Act arrangements that we would now call boarding house tenancies. A boarding house is clearly a commercial business and not a “small scale” or “limited letting”. The Act ought to apply to those tenancies. More problematic is the increasing prevalence of owners renting out their own homes while continuing to live there. Where a large property is tenanted but does not meet the definition of a boarding house, and the landlord or owner (or member of their family) resides permanently at the property and uses it as their family home, then I consider that section 5(1)(n) should usually apply. The fact that more rooms are occupied by tenants than by the landlord or owner (or member of their family) does not automatically change the fact that the premises are used mainly as a family home. The relationships are not “primarily commercial” in the same way as a boarding house, or a typical residential tenancy where the landlord grants exclusive possession to the tenants and there is no shared living. Simply comparing the relative use of rooms or the area of the house occupied by the landlord with that of the tenants may lead to strange outcomes. For example, if a sole tenant of a 3-bedroom property finds 2 flatmates to occupy the other rooms for rent, and the living areas are shared, it might be said that the tenant has (a) granted tenancies to those flatmates and (b) must comply with all landlord obligations under the Act, because the main use of the property is not as a place of residence for the sole tenant. If section 5(1)(n) is mechanically applied, it could easily transform someone who is plainly a tenant into a landlord.
The difference between that case, and this one, in my opinion, is that here the landlord was not living at the premises throughout the tenancy. For perhaps 50% of the time, they were living elsewhere. They had moved to Wellington for the foreseeable future. Therefore, the landlord was dividing their time between different properties. It may not have been clear to the occupants, and evidently was not clear to the tenant, that he was living with the landlord as the owner of the premises or that the premises remained the landlord’s family home. Conclusion
For these reasons, I find that the Act applies, and that the Tribunal has jurisdiction.
Name suppression is granted to both parties at this interim stage, as requested.

Reasons

Both parties attended the hearing on 22 January 2026 by videoconference. The purpose of the hearing was to consider whether the Tribunal has jurisdiction to hear the dispute.

Both parties have made applications to the Tribunal. However, the landlord has also sought a determination whether the Tribunal has jurisdiction.

There was no written tenancy agreement or flat-sharing agreement. The tenant rented a room in a 5-bedroom property owned by the landlord from 22 June to 9 November 2025 and paid weekly rent of $220.00. A bond of $440.00 was also paid. The only terms in writing were those mentioned in text messages prior to the tenant moving in. These were that the agreement could be terminated on two weeks’ notice, and reasonable outgoings were included.

I consider that this mainly verbal arrangement was sufficient to create a “tenancy”, as defined under section 2(1) of the Residential Tenancies Act 1986 (the Act).

The Tribunal’s jurisdiction is excluded if the premises 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 (section 5(1)(n) of the Act).

The public policy reason behind this exclusion, as I understand it, was to ensure that landlords who share their homes with a rent-paying boarder or lodger are not subject to the Act. In other words, non-commercial and small-scale letting arrangements are excluded.

The landlord-owner says that the tenancy address is their primary home, is where most of their belongings are stored, and where their mail is delivered. The situation is made more complicated by the landlord having moved to Wellington (where the landlord and her husband are renting) in September 2025 and by the renting out of various rooms. The landlord says they have not decided whether to stay in Wellington or move back to Auckland.

The landlord was living at the premises prior to the tenancy and during this time two other rooms were rented out. When the landlord moved to Wellington, they rented out a further room. Downstairs there is a bedroom with ensuite, a separate toilet, living room and kitchen. The landlord said the downstairs had its own entry. Upstairs there are four bedrooms, and the tenant said there was also a common area. The only kitchen is downstairs.

The landlord said the premises were rented out to the tenant, two other men in the downstairs area, and another tenant who was joined by his wife for a time. The landlord would only rent out two or three rooms and had not rented out more than three rooms at any time. The tenant said that three people were living at the premises during his first month (this may be three people in addition to the tenant).

There was different evidence about how much time the landlord spent at the property. The tenant said the landlord was only living at the premises for 2-3 weeks in the middle of his tenancy, in addition they both made visits. The landlord said she returned to Auckland with her husband in September and on another occasion, in October, she returned to discuss the issues with the flooring and cleaning which led to these proceedings. Her husband returned to Auckland in November.

Following the hearing the landlord provided some bank statements. These suggest that the landlord was away when the tenant moved in but was in Auckland from 26 June to 2 August and from 7 August until they left for Wellington in September 2025. Despite the Tribunal’s request for confirmation of the exact date the landlord moved to Wellington, this has not been provided. Relevant Law

In Musson v Dobrisek (CIV-2006-032-36, 5 May 2006, Judge Broadmore) the District Court said that the word “principally” in section 5(1)(n) of the Act referred to the main use of the premises, not to the relative duration of the landlord’s occupation of the premises compared to somewhere else (paragraph 38).

The question to be asked was whether the principal use of the premises was as a place of residence by the landlord (paragraph 39): 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(1)(n)] appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed-sitting 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.

I note that Musson v Dobrisek was decided prior to the introduction of Part 2A of the Act in 2010 (boarding house tenancies). A “boarding house” means residential premises containing one or more boarding rooms with facilities for communal use by the tenants, that are occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time. A “boarding house tenancy” means a residential tenancy in a boarding house that is intended to last for 28 days or more, and which grants the tenant exclusive rights to occupy sleeping quarters and the right to shared use of the facilities.

The evidence does not show that the premises have ever been occupied by 6 tenants or that the landlord intended to rent the premises to so many occupants at any one time. The number of occupants fluctuated, and the arrangements were casual. Analysis

The wording of section 5(1)(n) of the Act implies that, for the exclusion to apply, premises which have been used principally as the landlord’s place of residence prior to the tenancy must continue to be so used after the tenancy starts. For a large proportion of the tenancy the premises were not being used by the landlord as a place of residence. They retained their own room for their belongings, but otherwise the premises were occupied and utilised by their tenants with occasional visits by the landlord. The premises may still represent “home” for the landlord, but during the tenancy it was not always being used mainly as their place of residence.

The other factor which I consider favours the application of the Act, to some degree, is the commercial nature of the arrangements. If the landlord had rented out one, or maybe two bedrooms in their house to one or two flatmates, who continued to live at the property in the landlord’s absence, it would be much easier to view the arrangement as a lodging or boarder type situation, i.e., as being a small-scale letting. When the landlord moved to Wellington, they rented out three of the bedrooms and retained only one room for themselves with another room left empty.

Further, it does not appear that the move to Wellington was temporary, in other words, this is not a case of a landlord who has to travel for work but routinely comes back to the same premises as their primary residence. The move to Wellington may or may not be permanent and appears to be open-ended. The landlord is still living in Wellington and only visits the premises.

Even if the landlords had been living at the premises throughout the tenancy, it is not obvious that section 5(1)(n) would apply. If that were so the premises, while being the landlord’s primary - indeed only - residence, would still be used at least as much to provide accommodation for the tenants as for the landlord. However, the analysis would need to go further. In Khumalo & Another v Ward-Kotze [2022] NZTT 4407308, 4404201, I stated (at paragraphs 39-41): Section 5(1)(n) is a difficult provision, as cases like Muralidharan show. In my view, the approach adopted in Musson should now be distinguished in view of Part 2A of the Act relating to boarding houses. It is evident that the reference in Musson to landlord and tenant relationships which are “primarily commercial” reflected an understandable concern that section 5(1)(n) should not be used to exclude from the protection of the Act arrangements that we would now call boarding house tenancies. A boarding house is clearly a commercial business and not a “small scale” or “limited letting”. The Act ought to apply to those tenancies. More problematic is the increasing prevalence of owners renting out their own homes while continuing to live there. Where a large property is tenanted but does not meet the definition of a boarding house, and the landlord or owner (or member of their family) resides permanently at the property and uses it as their family home, then I consider that section 5(1)(n) should usually apply. The fact that more rooms are occupied by tenants than by the landlord or owner (or member of their family) does not automatically change the fact that the premises are used mainly as a family home. The relationships are not “primarily commercial” in the same way as a boarding house, or a typical residential tenancy where the landlord grants exclusive possession to the tenants and there is no shared living. Simply comparing the relative use of rooms or the area of the house occupied by the landlord with that of the tenants may lead to strange outcomes. For example, if a sole tenant of a 3-bedroom property finds 2 flatmates to occupy the other rooms for rent, and the living areas are shared, it might be said that the tenant has (a) granted tenancies to those flatmates and (b) must comply with all landlord obligations under the Act, because the main use of the property is not as a place of residence for the sole tenant. If section 5(1)(n) is mechanically applied, it could easily transform someone who is plainly a tenant into a landlord.

The difference between that case, and this one, in my opinion, is that here the landlord was not living at the premises throughout the tenancy. For perhaps 50% of the time, they were living elsewhere. They had moved to Wellington for the foreseeable future. Therefore, the landlord was dividing their time between different properties. It may not have been clear to the occupants, and evidently was not clear to the tenant, that he was living with the landlord as the owner of the premises or that the premises remained the landlord’s family home. Conclusion

For these reasons, I find that the Act applies, and that the Tribunal has jurisdiction.

Name suppression is granted to both parties at this interim stage, as requested.

Tenancy Tribunal case 5389006 — Cleanliness

At a glance

Claims & awards

Tenancy Tribunal case 5389006 — Cleanliness

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions