What was the outcome of Tenancy Tribunal case 5403248?

The tribunal order states: to satisfy the

How much money was awarded in case 5403248?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5403248?

The primary dispute was 14-day notice. Related themes: Harassment, Boarding House.

Where can I read the official tribunal order for case 5403248?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13226595-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5403248?

The tribunal order states: to satisfy the

How much money was awarded in case 5403248?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5403248?

The primary dispute was 14-day notice. Related themes: Harassment, Boarding House.

Where can I read the official tribunal order for case 5403248?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13226595-Tenancy_Tribunal_Order.pdf.

57 St Georges Bay Road, Parnell, Auckland 1052 Tenancy Tribunal Case 5403248 — 14-day notice

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Order

to satisfy the section 5(1)(n) exclusion. He says that this extension exists to expand tenant remedies against agents, not to narrow the Act’s protections.

Claims and awards in Tenancy Tribunal application 5403248. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
cifying weekly rent, and setting out terms including notice periods, bond or key deposits, and inspection rights. He say	$300.00		cifying weekly rent, and setting out terms including notice periods, bond or key deposits, and inspection rights. He say

The tenant tells me that the property is owned by a company and that a company cannot reside in premises. He says that the respondents seek to rely on the “landlord” limb of section 5(1)(n) by treating Mr Kwak as landlord through the agency provision, but that this is not an appropriate use of that definition.

He tells me that the arrangement bore the hallmarks of a tenancy. There were three written agreements identifying a landlord and tenant, specifying weekly rent, and setting out terms including notice periods, bond or key deposits, and inspection rights. He says that a bond of $300 was paid to Sky world Housing Limited, supported by a contemporaneous bank receipt.

He tells me that utility payments were directed to a corporate bank account rather than to Mr Kwak personally. He says that another occupant entered into a similar agreement naming the same corporate landlord and directing rent to the same account. He further tells me that a GST-registered tax invoice was later issued for rent in a substantial sum, directing payment to a related corporate entity. He says that these matters are consistent with a managed accommodation operation conducted through a corporate structure, rather than an informal domestic flat-sharing arrangement.

In the alternative, the tenant tells me that from 1 February 2024 the arrangement was a service tenancy. He says that this coincided with the commencement of his employment and the approval of his work visa, and that the employing entity and the property-owning entity were associated companies. He says that at the time of termination the respondents’ HR and Property Manager described the accommodation as granted as part of his employment.

The tenant tells me that although he accepts that Mr Kwak occupied the property during the relevant period, that fact alone is insufficient to engage section 5(1)(n). He says that Mr Kwak maintained a separate residential property and recorded that separate address as his address for service in the agreements. He says that the word “principally” in section 5(1)(n) requires a factual assessment and cannot be satisfied by assertion alone.

He tells me that the arrangement did not bear the hallmarks of a domestic flat- share between equals. He says that room allocation was controlled by Mr Kwak, that standardised agreements were used with multiple occupants, that payments progressed from a personal account to corporate accounts across related entities, and that accommodation income was treated as GST-liable commercial revenue. He says that these features are consistent with a commercial accommodation operation rather than a private domestic arrangement.

The tenant tells me that the February 2024 agreement stated that it was not covered by the Residential Tenancies Act 1986, but that section 11 prohibits contracting out of the Act. He says that whether the Act applies is a matter of law for the Tribunal and cannot be determined by agreement between the parties.

He further tells me that if the Act applies, the termination was invalid. He says that an ordinary periodic tenancy requires 90 days’ notice and a service tenancy requires at least 14 days’ notice, whereas the termination letter required vacancy within 48 hours. He says that this did not comply with either statutory provision and that any shorter contractual notice provision would be void if inconsistent with the Act.

The tenant tells me that disputes regarding whether rent was in fact paid, the characterisation of individuals involved, and the merits of the wider employment and compensation issues are matters for a substantive hearing. He says that the present hearing concerns jurisdiction only.

In conclusion, the tenant tells me that the arrangement was a residential tenancy governed by the Act; that the section 5(1)(n) exclusion does not apply; that the corporate ownership structure and manner of management are inconsistent with a domestic flat-share; and that the Tribunal therefore has jurisdiction to determine the substantive claims and cross-claims. Statutory Provisions:

Section 2(1) of the RTA provides the following definition for a landlord: 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; and, where appropriate, includes— (e) an agent of a landlord

Section 4 RTA provides that: This Act applies to every tenancy for residential purposes except as specifically provided.

The exceptions to the RTA are contained in Section 5. Relevantly, section 5(1)(n) of the Act provides that: 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.

“Residential premises” is defined in section 2(1)as: as any premises used or intended for occupation by any person as a place or residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.

“Premises” is defined in section 2 of that Act as including: (a) Any part of any premises; and (b) Any land and appurtenances, other than facilities; and (c) Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land.

The High Court in Kahi v Lucas HC Auckland HC81/96, 23 September 1996. and Harding v Schellevis & Ors [2021] NZHC 1265 determined that part of the premises may be a separate premise.

Each case will turn on its facts. It can be helpful but not determinative to look at other cases even where the facts seem similar. That is because no households are the same, the way that the parties interact with each other and the different ways they use the premises will make each case unique.

Section 10 of the Act provides that: 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 Mr Kwok must prove, on the balance of probabilities that section 5(1)(n) applies. Caselaw:

The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.

In Harding v Schellevis & Ors [2021] NZHC Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the tribunal and conversely a strict approach to exceptions. d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.

Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”

I also consider the definition of “flatmates” set out by the District Court in Musson v Dobrisek CIV-2006-032-36, 5 May 2006, is useful. The Court noted, at paragraph [22] By 'flatmates' I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens. Analysis:

Section 11 of the Act prohibits the parties from contracting out of the Act. The Act applies, and the Tribunal has jurisdiction, unless one of the exceptions in section 5 applies. Accordingly, I must determine the nature of the relationship as a matter of fact.

To do this, I must first deal with the issue of whether Mr Kwak can properly be considered the landlord, given that the property is accepted as being owned by his company. Section 2(1) of the Residential Tenancies Act provides that 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 and, where appropriate, includes an agent of the landlord.

Mr Kim contends that this means Mr Kwak was acting merely as the agent of his own company. I do not accept that the reference to an “agent of the landlord” was envisaged by Parliament to operate in that way. Mr Kwak clearly holds the beneficial interest in the property through the company and uses it as his place of residence. It is common for individuals to structure property ownership through corporate entities, and that does not remove them from the ordinary application of the statutory definition. On the evidence before me, the agreement and the surrounding circumstances indicate that Mr Kwak was the grantor of the arrangement and is therefore properly regarded as the landlord.

Mr Kim also told me that he was not permitted to go upstairs, which is where Mr Kwok’s bedroom was located, and he says that because he was both employed by Mr Kwak and living in the same house he could not be considered to have been on equal footing, as discussed by the District Court in Musson v Dobrisek. However, the equal footing referred to in that decision was qualified in that each occupant had exclusive occupation of their own room and shared use and occupation of common areas. There was no suggestion during the hearing that this was not the case, except that Mr Kim told me he was beholden to Mr Kwak.

It follows that the fact Mr Kim was not permitted upstairs falls within the scope of a flatmate arrangement. In the same way, Mr Kwak was not permitted to enter Mr Kim’s bedroom, over which Mr Kim had exclusive possession. This is entirely consistent with a flatmate arrangement within a shared home.

Further, equal footing does not necessarily mean that there can be no differences between the parties’ interest in the subject property. Flatmate arrangements commonly arise where one person owns the property and brings in a flatmate to assist with expenses, or where a tenant sublets a room to another occupant. In those situations, the parties are not identical in their legal relationship to the property but are nevertheless flatmates.

I accept that Mr Kim had exclusive possession of his room. Mr Kwak, for his part, occupied the upstairs area exclusively. The photographs provided show that the upstairs area is small relative to the remainder of the property and primarily consists of bedrooms. The evidence overall indicates that the parties otherwise moved throughout the property and used the shared areas.

Mr Kim submits that at times he did not use the kitchen or other facilities in the house. However, there is nothing to suggest that he was prevented from doing so. It is also not plausible that he and his children remained solely within one bedroom for the duration of their occupation. Mr Kim’s own evidence was inconsistent in this regard. At times he asserted that he had use only of one bedroom and that the landlord had use of the remainder of the house, while at other times he described the downstairs area as a self-contained space under his exclusive control.

In Harding v Schellevis, a leading case concerning the section 5(1)(n) exception, Walker J observed that the decisive factor in that case was the self- contained character of the granny flat. While the downstairs area here could appear self-contained for the purposes of the occupants if it were used exclusively by them, the evidence does not support that interpretation. It is clear that Mr Kwak entered and used the downstairs areas freely, and there was no meaningful division of the premises apart from the bedrooms themselves.

The fact that Mr Kim contributed toward household expenses also supports the existence of a shared domestic arrangement. I also accept the landlord’s evidence that the parties had broader financial dealings between them, including loans and other monetary arrangements. While those matters are not directly for determination, they do indicate a relationship that extended beyond a simple landlord–tenant arrangement.

I do not accept Mr Kim’s submission that the property necessarily bore the hallmarks of a tenancy simply because the written document identified a landlord and tenant and specified a weekly rent. Those terms appear within a document described as a flatmate agreement and are also elements of a flatmate arrangement. The presence of such terms does not prevent the section 5(1)(n) exclusion from applying.

Mr Kim also relied on the fact that Mr Kwak owned another property. That does not persuade me that the premises at 57 St Georges Bay Road were not principally used as Mr Kwak’s residence. The evidence before me is that this was where Mr Kwak lived. He explained that he did at times stay elsewhere while renovating another property and that, since the dispute escalated toward the end of 2025, he has reduced the amount of time he spends at the property.

I accept Mr Kim’s submission that the starting point is that a residential tenancy may exist. However, the Act provides specific exclusions. One such exclusion is where the premises continue to be used principally as a place of residence by the landlord.

I am satisfied that Mr Kwak was the landlord for the purposes of the arrangement and that the property was principally used as his residence. When Mr Kim travelled to New Zealand, Mr Kwak allowed him to live in his home under what was described as a flatmate agreement. Mr Kim had exclusive use of one bedroom and shared use of the remainder of the house, apart from Mr Kwak’s own bedroom area.

There were also features of goodwill and mutual benefit in the arrangement. Mr Kim was permitted to extend the accommodation to include his children. The parties sometimes shared meals. There were other financial dealings between them. Rent was not strictly enforced for a considerable period, apparently reflecting the wider relationship between them, until matters deteriorated following the employment dispute.

Taken together, these matters support the conclusion that this was a flatmate arrangement within a home that was principally occupied by Mr Kwak. Accordingly, the arrangement falls within the section 5(1)(n) exclusion, and the Residential Tenancies Act does not apply. H Ben Fayed 04 March 2026

Order

to satisfy the section 5(1)(n) exclusion. He says that this extension exists to expand tenant remedies against agents, not to narrow the Act’s protections.

Claims and awards in Tenancy Tribunal application 5403248. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
cifying weekly rent, and setting out terms including notice periods, bond or key deposits, and inspection rights. He say	$300.00		cifying weekly rent, and setting out terms including notice periods, bond or key deposits, and inspection rights. He say

Section 4 RTA provides that: This Act applies to every tenancy for residential purposes except as specifically provided.

The High Court in Kahi v Lucas HC Auckland HC81/96, 23 September 1996. and Harding v Schellevis & Ors [2021] NZHC 1265 determined that part of the premises may be a separate premise.

So, in the present case Mr Kwok must prove, on the balance of probabilities that section 5(1)(n) applies. Caselaw:

Tenancy Tribunal case 5403248 — 14-day notice at 57 St Georges Bay Road, Parnell, Auckland 1052

At a glance

Tenancy Tribunal case 5403248 — 14-day notice at 57 St Georges Bay Road, Parnell, Auckland 1052

At a glance

Claims & awards

Order

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Residential Tenancies Act sections

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Claims & awards

Order

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions