What was the outcome of Tenancy Tribunal case 5392843?

The tribunal order states: The applicant’s application has been dismissed for want of jurisdiction.

How much money was awarded in case 5392843?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5392843?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5392843?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13088416-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5392843?

The tribunal order states: The applicant’s application has been dismissed for want of jurisdiction.

How much money was awarded in case 5392843?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5392843?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 5392843?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13088416-Tenancy_Tribunal_Order.pdf.

Unit/Flat Unit 2, 22 Craig Road, Milford, Auckland 0620 Tenancy Tribunal Case 5392843 — Boarding House

Order

The applicant’s application has been dismissed for want of jurisdiction.

Reasons

Both parties attended the hearing.
The applicant applied for a declaration as to jurisdiction and for compensation/damages, refund of the bond and reimbursement of the filing fee. Jurisdiction
There is a written flatmate agreement provided to the applicant. However, this is the applicant’s first tenancy in New Zealand, and he was under the belief, that he was a tenant covered by the Residential Tenancies Act 1986 (RTA).
The respondent disputes the RTA applies because she has let out a room to the applicant and he shares all the communal facilities in the house with her and any other flatmates in residence. She states that the agreement she gave the tenant reflects the true nature of the relation between her and the applicant.

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 gave evidence that she lives in the five bedroom and two- bathroom premise, is the head tenant and she, rents the other rooms in the premise to less than six flatmates at any one time. There was no evidence that she intended to have the house occupied by six or more flatmates at any one time.
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 the landlord/head tenant/respondent and the applicant. The law and whether the section 5(1)(n) exception in the RTA applies
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 2/22 Craig Road, Milford, Auckland (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 ....”.
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 landlord/head/respondent confirmed that for the duration of the tenancy, she lived in the house and shared kitchen, dining, lounge and laundry facilities with her flatmates. She also confirmed that the premise is one of two units and the head tenant/landlord’s areas of the house were not separate to that of the tenant. The tenant rented a bedroom and communal use of the shared facilities.
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 landlord/head/respondent granted the right to the applicant as a flatmate to occupy a bedroom and to share the other communal household facilities with her and her flatmates.
Section 8 of the RTA states: “(1) Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree. (2) Without limiting subsection (1), any such agreement may confer upon the Tribunal, in respect of the tenancy, all or any of the jurisdiction conferred on the Tribunal by this Act in respect of tenancies to which this Act applies”.
The nature of the relationship between the applicant and the landlord/head tenant/respondent was recorded in a flat sharing agreement, so the nature of the relationship was clear from the outset.
The applicant is wanting his bond to be refunded and after speaking with the Bond Centre, he had some confusion about the nature of his relationship with the landlord/head tenant/respondent.
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 landlord/head tenant/respondent has proven, that the exception set out in s 5(1)(n) of the RTA applies by proving she continued to use the premises as her principal place of residence during the flatmate’s tenure, that s66B of the RTA does not apply and the parties have not contracted into all or part of the RTA.
Therefore, the tenant’s claim that she was a tenant that is covered by the provisions of the Act 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.
The applicant has not been wholly or substantially successful in his application. Therefore, his application for reimbursement of the filing fee is denied.

Order

The applicant’s application has been dismissed for want of jurisdiction.

Reasons

Both parties attended the hearing.
The applicant applied for a declaration as to jurisdiction and for compensation/damages, refund of the bond and reimbursement of the filing fee. Jurisdiction
There is a written flatmate agreement provided to the applicant. However, this is the applicant’s first tenancy in New Zealand, and he was under the belief, that he was a tenant covered by the Residential Tenancies Act 1986 (RTA).
The respondent disputes the RTA applies because she has let out a room to the applicant and he shares all the communal facilities in the house with her and any other flatmates in residence. She states that the agreement she gave the tenant reflects the true nature of the relation between her and the applicant.

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 gave evidence that she lives in the five bedroom and two- bathroom premise, is the head tenant and she, rents the other rooms in the premise to less than six flatmates at any one time. There was no evidence that she intended to have the house occupied by six or more flatmates at any one time.
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 the landlord/head tenant/respondent and the applicant. The law and whether the section 5(1)(n) exception in the RTA applies
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 2/22 Craig Road, Milford, Auckland (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 ....”.
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 landlord/head/respondent confirmed that for the duration of the tenancy, she lived in the house and shared kitchen, dining, lounge and laundry facilities with her flatmates. She also confirmed that the premise is one of two units and the head tenant/landlord’s areas of the house were not separate to that of the tenant. The tenant rented a bedroom and communal use of the shared facilities.
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 landlord/head/respondent granted the right to the applicant as a flatmate to occupy a bedroom and to share the other communal household facilities with her and her flatmates.
Section 8 of the RTA states: “(1) Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree. (2) Without limiting subsection (1), any such agreement may confer upon the Tribunal, in respect of the tenancy, all or any of the jurisdiction conferred on the Tribunal by this Act in respect of tenancies to which this Act applies”.
The nature of the relationship between the applicant and the landlord/head tenant/respondent was recorded in a flat sharing agreement, so the nature of the relationship was clear from the outset.
The applicant is wanting his bond to be refunded and after speaking with the Bond Centre, he had some confusion about the nature of his relationship with the landlord/head tenant/respondent.
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 landlord/head tenant/respondent has proven, that the exception set out in s 5(1)(n) of the RTA applies by proving she continued to use the premises as her principal place of residence during the flatmate’s tenure, that s66B of the RTA does not apply and the parties have not contracted into all or part of the RTA.
Therefore, the tenant’s claim that she was a tenant that is covered by the provisions of the Act 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.
The applicant has not been wholly or substantially successful in his application. Therefore, his application for reimbursement of the filing fee is denied.

Tenancy Tribunal case 5392843 — Boarding House at Unit/Flat Unit 2, 22 Craig Road, Milford, Auckland 0620

At a glance

Tenancy Tribunal case 5392843 — Boarding House at Unit/Flat Unit 2, 22 Craig Road, Milford, Auckland 0620

At a glance

Claims & awards

Order

Reasons

Is this a boarding house tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Is this a boarding house tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions